Tuesday, June 23, 2009

Criminal Harassment . . . Or Just Bad Manners?

Ok. They charged my guy with harassment. For those interested souls, the Texas harassment statute is found in section 42.07 of the Texas Penal Code. If you don't care about the code, then just sit in and listen.

Harassment can be charged in multiple ways. In this case, the bad guys say my client initiated a written communication with a person and during the communication made an "obscene" comment. Specifically, they say my client sent the person a "hand-drawn" depiction of the female genitalia with the caption, "Can I lick you, Katie?"

With the hope of not getting charged with harassment myself, let me say this is family oriented blog. The quote above is from the public record and open to public scrutiny. Any 12 year old can go up to the county court house and pull this file.

Now, the harassment statute defines "obscene" in a most peculiar way. Obscene means a writing "containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function." (funny, my spellcheck doesn't understand half of these words) Nonetheless, patently offensive is not defined and the law provides no guidance as to its meaning.

Certainly, my grandmother might be shocked by such an image and suggestion. But my dad, and probably my wife, would care less. So who's sensibilities is this statute designed to protect? That's the problem. There are no guidelines for law enforcement. Furthermore, people of ordinary intelligence cannot discern what type of conduct is actually prohibited by the statute. Patently offensive is open to unlimited interpretations . . . what might be offensive to one person might not be offensive to another. This is called vague and over-broad for those interested legal eagles.

And what about our constitutional right to write (and draw, I suppose) what we want? That's called free speech in this country and is protected by the U.S. Constitution. Specifically, a case entitled Miller v. California set the standard for what is obscene in America. The Miller case incorporated a community standard of decency and consideration of a writing's literary, artistic, political, or scientific value . . . all qualifications the Texas harassment statute does not include. At least under Miller, a jury would have some needed guidance in determining the limits of one's writing and drawing prowess.

So, does the prosecutor have a point, or does my client simply have bad manners? I'd love to hear what you think? (Becky, this means you, too)

Wednesday, June 17, 2009

Cultural Bias Among Judges, Juries, & Prosecutors (I)

How much cultural bias exists within the American justice system? Among judges?Among juries? And how about the prosecutors who decide what and when to charge persons of different ethic backgrounds with crimes? Let's look at judges today. We'll examine juries and prosecutors in later posts.

Despite our impression Lady Justice is blind, racial and ethic bias exists among judges. I'm sure few judges would admit to personal bias. However, everyone has it . . . even judges. Even though most judges pay close attention to the merits of a particular case, their different (cultural) life experiences lead to different interpretations of facts and circumstances they are called upon to adjudicate.

The solution? Possibly comprehensive diversity training for judges to address their "decision-maker" bias. Maybe the installation of procedures for identifying and sensitizing judges to their personal cultural prejudices. Perhaps judges should get out into their communities more often and develop sharper cultural sensitivity.

First, and foremost however, judges must realize they possess cultural bias. They must realize their personal prejudices effect how they interpret facts and circumstances . . . especially when the circumstances involve persons of different ethnicity from themselves. Lastly, they must learn how to fairly approach situations in court which encompass their prejudices and assumptions.

Thursday, June 11, 2009

Culture Issues In Criminal Defense Work

Recently we defended the interests of a Mexican national charged with the aggravated sexual assault of a child. The client was a 22 year old illegal alien who, at the age of 19, had impregnated a 12 year old girl also of Mexican descent. Once the girl gave birth, police authorities intervened, identified my client as the father, and began a prosecution for one of Texas' most serious sexual offenses.

As the investigation progressed, we quickly learned the client and alleged victim were in a romantic relationship. The client had approached the girl's parents and asked permission to see her. The parents were also Mexican nationals who had come to the United States many years ago looking for a better life. Their cultural background based in rural Mexico influenced their world-view. They were happy to allow their 12 year old daughter to see my 19 year old client.

From my perspective (as a white American born male) the age difference between the client and his girlfriend seem too unreasonable. However, I started to research the cultural norms in Mexico regarding dating and marriage. Surprisingly, I found that in rural Mexico young men of my client's age, and young girls hardly teenagers, regularly began to date and marry.

Clearly, my client's world-view, and that of the girl, were shaped by Mexican cultural influences. My client was not a sexual predator as the prosecutor tried to depict him. Rather, he was young man isolated by language barriers, economic barriers, and cultural barriers who fell for a young girl . . . not unlike relationships developing everyday in rural Mexico. We hired a cultural expert who helped the jury understand the motivation behind the client's behavior. Although we were unsuccessful in persuading the jury to acquit on the sexual assault charge, we were successful in convincing them that probation was the appropriate punishment result. Rather than the 15 years hard time the prosecutor asked for, the client received 10 years probation.

In future posts I'd like to explore the issues of cultural defenses in more detail. Cultural influences shape the way individuals perceive reality and thus guide their decisions. Judges and juries must be educated in this regard to assure the American justice system works fairly and equitably when persons from different cultures allegedly commit crimes in the United States.

Wednesday, June 3, 2009

Go Green Death

Coach, the "politically correctness police" are not welcomed here either.  So saith the former coach of the Scituate "Green Death" soccer team.  In an email to players and parents, Coach Michael Kinahan explained he wanted to develop soccer players who "kick ass and take names on the field, off the field, and throughout their lives. I respect Coach Kinahan's approach and teach these principles to my children. It's also the only way to thrive in the competitive world of criminal defense law practice. Out of my high regard for the Coach, below is his email in its entirety.  It is worth the read.
Congratulations on being selected for Team 7 (forest green shirts) of the Scituate Soccer Club! My name is Michael and I have been fortunate enough to be selected to coach what I know will be a wonderful group of young ladies. Chris Mac will also be coaching and I expect the ever popular Terry to return to the sidelines. Our first game will be Saturday April 4 at 10:00AM. There will be a half hour of skills followed by a 1 hour game, so total time will be 1.5 hours. All games will be played on the fields in the front of the High School. Each player will be required to wear shin guards and cleats are recommended but not required. A ball will be provided to each player at the first meeting, and each player should bring the ball to games and practices. There is no set practice time allotted for the U8 teams, but I will convene with the coaches to determine the best time and place. If there are cancellations due to rain, all notices will be posted via the Scituate Soccer Club website, no calls will be made (though I will try to send an email). Attached is the Schedule and Code of Conduct. After listening to the head of the referees drone on for about 30 minutes on the dangers of jewelry (time which I will never get back), no player will be allowed to play with pierced ears, hairclips, etc. We used to tape the earings, but that practice is no longer acceptable. Please let me know if your child has any health issues that I need to be aware of. My home phone is 781 XXX XXXX, my cell number is 781 XXX XXXX, and I check my email frequently. According to my wife, my emails get too wordy, so for those of you read too slowly, are easily offended, or are too busy, you can stop here. For the others……
OK, here’s the real deal: Team 7 will be called Green Death. We will only acknowledge “Team 7” for scheduling and disciplinary purposes. Green Death has had a long and colorful history, and I fully expect every player and parent to be on board with the team. This is not a team, but a family (some say cult), that you belong to forever. We play fair at all times, but we play tough and physical soccer. We have some returning players who know the deal; for the others, I only expect 110% at every game and practice. We do not cater to superstars, but prefer the gritty determination of journeymen who bring their lunch pail to work every week, chase every ball and dig in corners like a Michael Vick pit bull. Unless there is an issue concerning the health of my players or inside info on the opposition, you probably don’t need to talk to me. Coach MacDonald has been designated “good guy” this year. Some say soccer at this age is about fun and I completely agree. However, I believe winning is fun and losing is for losers. Ergo, we will strive for the “W” in each game. While we may not win every game (excuse me, I just got a little nauseated) I expect us to fight for every loose ball and play every shift as if it were the finals of the World Cup. While I spent a good Saturday morning listening to the legal liability BS, which included a 30 minute dissertation on how we need to baby the kids and especially the refs, I was disgusted. The kids will run, they will fall, get bumps, bruises and even bleed a little. Big deal, it’s good for them (but I do hope the other team is the one bleeding). If the refs can’t handle a little criticism, then they should turn in their whistle. The sooner they figure out how to make a decision and live with the consequences the better. My heckling of the refs is actually helping them develop as people. The political correctness police are not welcome on my sidelines. America’s youth is becoming fat, lazy and non-competitive because competition is viewed as “bad”. I argue that competition is good and is important to the evolution of our species and our survival in what has become an increasingly competitive global economy and dangerous world. Second place trophies are nothing to be proud of as they serve only as a reminder that you missed your goal; their only useful purpose is as an inspiration to do that next set of reps. Do you go to a job interview and not care about winning? Don’t animals eat what they kill (and yes, someone actually kills the meat we eat too – it isn’t grown in plastic wrap)? And speaking of meat, I expect that the ladies be put on a diet of fish, undercooked red meat and lots of veggies. No junk food. Protein shakes are encouraged, and while blood doping and HGH use is frowned upon, there is no testing policy. And at the risk of stating the obvious, blue slushies are for winners. 
These are my views and not necessarily the views of the league (but they should be). I recognize that my school of thought may be an ideological shift from conventional norms. But it is imperative that we all fight the good fight, get involved now and resist the urge to become sweat-xedo-wearing yuppies who sit on the sidelines in their LL Bean chairs sipping mocha-latte-half-caf-chinos while discussing reality TV and home decorating with other feeble-minded folks. I want to hear cheering, I want to hear encouragement, I want to get the team pumped up at each and every game and know they are playing for something. Lastly, we are all cognizant of the soft bigotry that expects women and especially little girls, to be dainty and submissive; I wholeheartedly reject such drivel. My overarching goal is develop ladies who are confident and fearless, who will stand up for their beliefs and challenge the status quo. Girls who will kick ass and take names on the field, off the field and throughout their lives. I want these girls to be winners in the game of life. Who’s with me? 
Go Green Death!