Posts Tagged ‘Mark Bennett’

Gun Bigotry

Monday, February 8th, 2010

Mark Bennett at Defending People thinks a client of his was discriminated against because of his race: white.

But read the facts of the case:

I had a client recently—call him Sam—who got in the law’s bad graces for some conduct involving alcohol and the brandishing of a firearm in his garage while his young daughter slept upstairs. The daughter—well-fed, well-loved, well-adjusted and well-cared-for—was never in any danger and never even knew what had happened.

Only a total idiot would think it was a good idea to take that child out of that home, but CPS was all over Sam’s case, questioning his daughter at school, filing suit against him, threatening to take her away from him and his wife. By spending a bunch of money on lawyers, Sam and his wife were able to fend off CPS and keep their very lucky child in their home.

Bennett then recounts another case where an eight year old girl starves to death because CPS repeatedly ignores signs of neglect.

In the first case, the parent was white; in the second, black.

I think there was bigotry, but not against race. My comment on DP [still awaiting moderation]:

One factor jumps out at me far more than race:

Sam’s case involved a firearm. I believe, based on many other stories I’ve read (i.e., anecdotal avidence) that CPS workers have a very strong prejudice against firearms and firearm owners.

Of course, Sam behaved irresponsibly. However, he in fact caused no harm. He very properly should have been rebuked with a fine. I think a mandatory gun safety course would be an excellent step. I might even support his gun being confiscated for a repeat offense.

But to confiscate his child? When no harm came to her or anyone else?

There is indeed prejudice here, outright bigotry. But it’s not against Sam’s melanin deficiency. It’s against his exercise of the Second Amendment.

Why Defend the Indefensible?

Saturday, January 9th, 2010

At his excellent law blog Defending People, Mark Bennett answers The Question: “Why do you defend people who you know to be factually guilty?”

Actually, he answers seven times, after thoroughly dissecting the question itself. I’m going to abstract here, but you should absolutely read the whole thing.

I. The Sixth Amendment Answer

We swear to uphold the U.S. Constitution. Part of that Constitution, the Sixth Amendment, requires that everyone accused of a crime—not just everyone who a good lawyer thinks deserves it—have effective representation.

II. Cops lie [Scott Greenfield]. Prosecutors cheat. Juries screw up. Some laws should not exist, and other laws provide punishments that are grossly out of proportion….

If I take it upon me to decide who is guilty, it’s almost certain that sometimes my judgment would be wrong .

III. Jesus set the example—when called on to judge the woman caught “in the very act” of a capital offense, he defended her. Successfully.

IV. We all deserve at least one person on the damn planet willing to stand there next to us and fight on our behalf.

V. Any approximation of justice that the system creates comes about only because there are people fighting on both sides.

VI. The John Wayne Answer: When a person comes to me for a defense, with the vast power of the government arrayed against him, no matter what he did before he is the underdog now. I stand up for the underdog. I protect the weak from the strong. Every man needs a code to live by, and that is part of mine.

VII. Criminal defense is a way of looking at the world….

In other words, wir können nicht anders.

Read the whole thing, absolutely.

Overwhelmingly, a government unconstrained by constant challenge is guaranteed to do far more damage, to enslave and outright murder far more people, than even the most wicked of outlaws.

Don’t Call The Cops

Sunday, March 1st, 2009

I know some folks who need to read this.

Folks, do not — Do Not — call the police, or 9-1-1, to discipline your children for you.

Do not ask your child’s teacher, or guidance counselor, or Assistant Principal, or any similar official, to help you discipline your child — because they are likely to call the cops. Indeed, you may unintentionally run across some tripwire that requires them to call the cops, Child Abductive Services, or other quasi-law enforcement agency.

And once you have attracted the attention of The Authorities, it is impossible to turn them away.

From Mark Bennett, Houston defense attorney:

Steve Hobart says he’ll never forget the frantic moments after his 19-year-old son was shot. He’ll never forget seeing a bloodied Aaron Hobart die in front of his eyes as he struggled to give him CPR. “We wanted Aaron to get help,” Hobart said with watery eyes Tuesday. “We didn’t want him to die.”

Stafford police have said Aaron attacked officer Jesus Estrada after police responded to a 911 call at his parents’ Aspen Lane home last week. During the struggle, Estrada shot and killed Aaron, police said.

But Aaron’s father and a family attorney said Tuesday that the unarmed, mentally ill man was shot four times after Estrada pushed him away.

His father said Aaron was in a psychiatric crisis. He was delusional and had refused to take his medication. His parents hoped police would either persuade him to take the pills or take him to the hospital.

A police department is designed to deal with one sort of problem: crime. It deals with that sort of problem with a blunt instrument: the use (including threats) of deadly force. Aaron’s family says that the police should have better training. This is certainly true, and it is good that there are cops with “crisis intervention training” and “mental health training” — the Law of Requisite Variety dictates that the more training in using things other than deadly force the cops have, the fewer mentally-ill children they will kill.

But cops are still guys with guns, accustomed to having deadly force as an option, and if you have a family dispute and call a guy with a gun, there is a non-zero chance that you or someone you love will wind up dead.

Whom the cops don’t kill, they often arrest — they don’t have a large menu of other options.

Calling 9-1-1 is the nuclear option in family dynamics, little less of an escalation than wielding the gun yourself. Calling the cops on a family member can, like pulling the trigger, do instant, irreversible, and regrettable damage to the people you love. If there is a way for you to avoid it, do.

Real World

Wednesday, November 5th, 2008

Houston Defense Attorney Mark Bennett posts two great articles on real-world law: one aimed at his clients, and one aimed at prosecutors.


For the defendant:

…If, based on something you heard at a seminar put on by Winston Shrout or his ilk you create a fictitious commercial instrument and deposit it in a bank, you’re likely to wind up getting arrested by real (not straw) agents with real badges, hauled before a real court with real power to send you to real prison (maybe you can share a cell with Roger Elvick, the white supremacist who dreamt up all of this Redemption nonsense) where real guards can kill the real you if you try to escape.

And for the prosecution:

The government doesn’t get to decide whether the witness has a good faith reason to refuse to talk; if it did, there’d be no point in having a Fifth Amendment right against self-incrimination.

But aside from that, there is no such test, in the real world (which is where I practice) for taking the Fifth. As I have said here before, this is the way it works:

  • Witness is sworn in.
  • Witness is asked a question.
  • Witness refuses to answer on grounds that the answer might tend to incriminate him.
  • Witness is asked another question.
  • Witness again refuses to answer.
  • Prosecutor gets tired of this game.

At this point, the prosecutor appearing before the grand jury is not allowed to strap the witness down and waterboard him until he answers the question. He has two options. First, he can let it go and let the witness go on about his business.

Second, he can go to a judge and ask the judge to order the witness to answer the questions. If the judge orders the witness to answer the questions, the witness has to either answer or be held in contempt.

But guess what: the judge’s order for the witness to answer the questions is a grant of use immunity.

Grand Juries are at once extremely powerful, and are, for the most part, wholly owned and operated by the Prosecution. (It was not always thus; GJ’s used to be fairly independent, and my understanding is that they still can, if they wish, start and pursue their own investigations, or refuse to pursue an investigation requested by the prosecution.)

The check to this is for witnesses (suspects) to understand their rights and Grand Jury procedure. Mr. Bennett has done all of us a great service.