Cross: Mark Bennett, Have Speech, Will Travel
Mar. 30, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Houston criminal defense and First Amendment lawyer, Mark Bennett, whose blog, Defending People, is one of the foremost criminal law blogs around.
Q. While everyone knows you now as the Texas Tornado, you had an “international” upbringing as a result of your father’s work for the government. What influence did that have on your perspective? Did you find your education to be better, worse, different, than that taught in the United States? Did growing up in other cultures make you see America differently than others? And what about your father, who is one of the handful of truly great men to get married in a Dunkin’ Donuts? Did he, his work, influence your world view?
A. My education abroad (in Frankfurt, Bangkok, and New Delhi) was much better than I would have had, had I remained in the US. Aside from the superiority of the international schools to American public schools, growing up overseas exposed me to other cultures and to the fundamental sameness of people. Recognizing that sameness saves me a lot of work guessing what an adverse witness, or a judge or a prosecutor is thinking. Because friends would leave every year and new ones would arrive, my expat childhood gave me the ability to find rapport quickly with others.
While 9/11 “changed everything” for most Americans, I had long been accustomed to living with the threat of terrorism, and recognizing the difference between rational mitigation of that risk, and panic. America has been in a panic since 9/11; we’ve given the government permission to take away vast swaths of rights, all for a risk that is less than that of riding in a car or going to the doctor or taking in a show.
My Mom’s brother, Randy, was an Air Force pilot. Whenever Dad and Randy parted ways, one of them would say, “well, I’m off to fight communism,” and the other would reply, “it’s a tough job, but somebody’s got to do it.” So I have Dad to thank for my sense of duty: find a tough job that someone has to do, and do it. I could have gone to work for the CIA (I worked there a summer during undergrad) but Dad encouraged me not to subject myself to government bureaucratic chickenshit, but rather to work for myself.
Q. You did your undergrad at Rice, where you majored in religious studies, a rather curious choice. What the hell were you thinking? Was there a plan of action at the time? You then went to University of Houston for law school. Why law? Did you go in with the purpose of coming out to practice criminal law? Did you ever consider becoming a prosecutor, or was it criminal defense all the way? Is there something wrong with prosecuting?
A. I started at Rice as a Political Science major because that seemed like a natural major for my background and law-school aspirations. After seven semesters of that I looked at my GPA and realized that poli sci bored the crap out of me. The Religious Studies classes I had taken had fascinated me, so I had done well in them. I switched majors, took an extra semester to graduate, and finished with a 3.5 in my major. My overall GPA was still embarrassing, but I do really well on standardized tests, so I got into a good enough law school.
I’ve always been a helper and defender of people, looking for reasons for their behavior rather than condemning them. I went to law school planning to be a criminal-defense lawyer, but my 1L crimlaw prof made criminal law dry and boring. So I decided to be a civil lawyer and cash in. It took three summer clerkships at litigation firms to show me the error of my ways—nobody at those firms seemed to be having any fun.
Prosecuting is against my nature, but I cynically applied to the DA’s Office for the experience. My mentor, Jim Skelton, told me I could “get six months’ experience, six times over” at the DA’s Office. Fortunately the interview went about like you would expect, and I didn’t get an offer.
There is nothing wrong with prosecuting if you are the sort of human being who enjoys putting people in cages. I have nothing but compassion for you, and I hope for your sake that the universe is not just.
Q. When you were admitted to practice in 1995, you immediately hung out your own shingle. How did that work out for you? Was it what you expected? What about your first trial? Was it a home run or strike out? Were you a star right out of the box, or did you have to pay some dues along the way?
I had certain advantages when I started out. Jennifer, my then-girlfriend (we have been together since 1992, and we’ll have been married 19 years next week), had a salaried job, so we weren’t in danger of eviction. One of my law school adjunct professors was feeding me contract research-and-writing work. Another was appointing me to criminal appeals. And most importantly, I had no expectations. My first trial was a qualified loss—it was a federal bank robbery trial, and my client was convicted, but he appreciated the fight I put up for him, and he wound up getting less time than he probably would have had he pled guilty.
I have seen very few naturally talented trial lawyers. Most, including me, have to work hard and study to be any good. I am a fairly smart guy, though, and most things that the naturals do intuitively I can, with some studying, reverse-engineer, duplicate, and sometimes even improve. This gives me the advantage of being able to pass on my skills to other lawyers—you can’t teach people to be naturals, but you can analyze and formalize what the naturals do, and teach the formalized methods. I’m inspired by Terry MacCarthy, who formalized cross-examination, with his “Look Good” cross.
Q. Among the aspects of trial that you’ve taken under wing is voir dire, where you came up with the 16 Rules for Jury Selection. What made you focus on voir dire? You have great faith in the ability to select an impartial jury, whereas many (myself included) tend to consider it more voodoo than science. Why? What makes you think that with the right approach, lawyers can look inside the heads of potential jurors and figure out what’s going on in there? Is this art, science, a mixture or just wishful thinking?
A. In cases where the lawyers get to conduct their own jury selection, cases are won and lost in that part of the trial. If, as I contend, jurors have made up their minds by the end of opening statements, so that the evidence is unlikely to change their minds, voir dire is the most important part of the trial. Juror research supports my theory, so I’ll call that part “science.”
It’s not about looking inside the heads of jurors, and an “impartial” jury is the next-to-last thing I want. What I want is jurors coming out of jury selection having thought of a possible theory of the case, which will match my story in opening statements. Orchestrating a discussion that allows the jurors to think of my defense is the part I’d call “art.” I am not an artist, but my 16 Rules are a good example of my learning how to talk to jurors, and then formalizing my method. A lawyer following my 16 Rules is less likely to get in her own way and block the discussion that will result in the jurors thinking of her defense. If you follow my 16 Rules and the jury panel doesn’t suggest your defense as a possible defense, it’s not a very good defense.
Q. You took a trip to a ranch in Dubois, Wyoming, where you attended Gerry Spence’s Trial Lawyer College. What made you decide to spend five weeks of your life there? Was it worth it? What did it do for you, for your trial skills? Some have suggested that there’s something cult-like about TLC. Did you find it that way? When you were done, what did you take away that you didn’t have before?
A. I had had some exposure to the psychodramatic method as a tool for trial lawyers before going to TLC in 1999, but five weeks at TLC taught me a great deal more about the method and unquestionably made me a better lawyer. TLC was a great experience, and I recommend it to any trial lawyer.
That said, there are those who see the TLC way as The Way to try cases. There are cultlike aspects to their devotion. I recommend that lawyers go to TLC thinking of it as a gateway, rather than The Way. TLC should open their minds to the application of other “technologies” than psychodrama to trial lawyering: for example, improv, which I’ve been doing for eight years, and which is not only indispensable to my advocacy but also makes me a better psychodramatist.
Lawyers do not have a monopoly on the study of persuasion, and most of us are too tied up in day-to-day client concerns to make a concerted study of persuasion techniques. I am forming a “skunkworks” group of lawyers who are motivated to investigate the application of other technologies to trial lawyering.
Q. In 2012, you ran as the Libertarian candidate for the Texas Court of Criminal Appeals, losing to Barbara Hervey. What made you decide to run? Did you expect to win or was there a principle at stake? How did you do? Did you get anything out of it? Was it worth the effort?
A. I ran because the Libertarian Party needed someone to run, and it sounded like fun. I didn’t expect to win as a Libertarian, but there is no good reason for judges to be elected in partisan elections. It gave me an opportunity to think and talk about how I would improve the criminal justice system in Texas. My main platform planks were (and are—I’m running again this time): the Court of Criminal Appeals should hold lawyers on both sides to a higher standard; and the Court of Criminal Appeals should interpret the Texas Constitution as its authors would have, rather than follow the United States Supreme Court’s constitutional jurisprudence. For example, I question whether the Texas lawyers who wrote the state constitution in 1836 would have countenanced what we now call Terry stops, physical restraints on Texans’ movement without a warrant or even probable cause.
Q. Your law firm website has one of the best pages ever, Why You Shouldn’t Hire Me. While so many lawyers desperately troll the internet for business, willing to say almost anything for a buck, you try to scare people away. Why? What does that say about your attitude toward the business of law? What does that say about others, who will say or do anything to get a case? You’ve never been shy about criticizing lawyers who engage in unethical conduct to make money. Why do you feel compelled to call out disreputable lawyers?
A. I’ve always been contrarian in my marketing. When I started my practice, I saw many lawyers advertising that they were former prosecutors as though that is an unqualifiedly good thing. I had never seen anyone advertise “never a prosecutor”—the dedicated criminal-defense lawyers were buying into the rhetoric. But “former prosecutor” is shorthand both for things that clients want (for example, trial experience) and for things that clients don’t want (for example, a desire to see people put in cages) in their criminal-defense lawyers, so I started advertising myself as “never a prosecutor,” and explaining the advantages of hiring someone who never put people in cages.
My Don’t Hire Bennett & Bennett If… page is similarly contrarian. Every day we are beset with marketers trying to sell us SEO, links, or leads. So many lawyers are so desperate for the phone to ring, but the truth is that most of the time when our phones ring, it’s a waste of our time, either because the caller can’t hire us or because we don’t want him to.
It doesn’t hurt that it also demonstrates the influence tools of reciprocation (giving the potential caller something for free), commitment (when the caller reads that page and calls anyway, he is hooked), and social proof (I have enough business that I can afford to be blunt about who should not hire me).
I tell young lawyers to act like the sort of lawyer when they start that they want to be. If you want to be a low-bid lawyer with the stink of desperation after twenty years, act like that when you start your practice. On the other hand, if you want to be a Man to See, a lawyer for whose help people pay a premium, act like that’s who you are now. If you want to be a lawyer who grovels for his phone to ring, go ahead and grovel now.
Lawyers who would lie to and steal from clients should not be practicing law. A lawyer who would fudge the facts to get his phone to ring would lie to a client. A lawyer who deceives the client to get a case is stealing from the client.
Why does it matter to me whether other lawyers lie to and steal from their clients? I’m proud of my little corner of the profession, the criminal-defense community. It holds a sacred trust, so important to America that the founders included it in the Bill of Rights, and its lawyers are the finest the bar has to offer. But because of its clientele it has a reputation for dishonesty. I would like to see those who fit the public’s stereotype of criminal-defense lawyers run out of the profession, and I’m not shy about helping do the running.
Q. You’ve had a long term, extremely well-regarded blog, Defending People, at which you’ve picked your share of fights and offered some remarkably thoughtful, maybe even scholarly, commentary. What made you start writing? Was it meant as an outlet for your thoughts, a marketing tool, a platform to further an agenda or something else? Your writing seems to ebb and flow these days. Is it not as much fun as it used to be? If not, what’s changed? Do you see most of the legal writing today helping, hurting or having no impact?
A. Defending People is an outlet for my thoughts. I never had an agenda, and any marketing value was incidental. When I started it I was on hiatus from appellate work, and writers gotta write. Now that my appellate practice is in high gear, I have lots of other things to write.
Most online legal writing is utter crap from people who don’t know and can’t write. I’ll still write occasionally at Defending People, if for no other reason than to raise the tone a bit.
Q. In the past couple of years, your practice has expanded beyond criminal defense into First Amendment law. Your getting a criminal statute thrown out as unconstitutional by the Texas Court of Criminal Appeals certainly helped to propel you into the upper echelon of First Amendment lawyers. How did it happen that you decided to transition? Is there a connection between free speech and criminal defense? Do you see speech and expression on the forefront of new crimes? Do people “get” free speech? There is little question that it’s under attack on college campus, but what about elsewhere? What about in the courts and legislatures? What makes speech so ripe for attack these days?
A. My entrée into First Amendment law was a series of attacks on one particular Texas penal statute, which resulted in one of the largest legal jailbreaks in Texas history. When I started the attacks, I didn’t know what I was doing, but I quickly became one of the foremost authorities on the intersection between criminal law and free-speech law. With one case, I set more convicted people free—convictions reversed, off probation, off the sex-offender registry, off parole, or out of prison—than most lawyers do in a lifetime.
The First Amendment is a lever: every time I kill a statute, countless other people benefit. I will probably never run out of First Amendment work. Legislatures will be passing unconstitutional laws into the foreseeable future. Speech-restricting laws are trendy because legislatures are trying to prevent every harm that can be caused on the internet, and almost everything that happens on the internet is speech.
I have convinced courts across Texas that several such laws are unconstitutional, and I have three cases pending in Georgia—I even got to argue before the Georgia Supreme Court last month. I’d happily travel anywhere else lawyers need a hand challenging statutes that restrict speech. But most lawyers don’t even recognize when a statute restricts speech, or they think that speech is unprotected because it is harmful or violates privacy—propositions that are not true. So I’ve been reaching out to lawyers in Texas and elsewhere offering my assistance for whatever the client can afford.
There are also people who benefit financially from my pro bono fights. By killing speech-restricting penal statutes, I make the world a little safer for the pornographers, strip clubs, and book stores. In fairness, these folks ought to be footing part of the bill.
Q. Where is Mark Bennett heading next? You started out as “Paladin; Have Gun, Will Travel,” and haven’t stopped since. Do you plan to continue further down the First Amendment path? Do you want to keep running for the Court of Criminal Appeals until you get a seat on the big bench? Will you stay a small firm, Bennett & Bennett, or can you picture yourself in something larger? Maybe even teaching, given your scholarly bent? Or will you just continue to ride from circuit to circuit waiting for the next jury to pick and cop to cross?
A. I won’t stop trying criminal cases to juries, but I’ve always looked at trial lawyering as similar to prize fighting: the top fighters aren’t fighting every week, or even every month. They’re spending their time staying in shape and getting better at what they do. Developing the state of the trial-advocacy art is important to me. It helps me to be a better trial lawyer, and gives me something to pass along to make others better as well. I will build my skunkworks project, and keep mentoring young lawyers.
Last year I celebrated my 20th year of practicing criminal-defense law. My criminal-defense legacy is secure in the form of two generations of protégés, and twenty years is long enough to focus so intensely on one thing. So I am directing more of my efforts to where they will make the most difference for the most people. This means more litigation of First Amendment issues, in both criminal court and civil court. I have a small civil free-speech practice already, defending against defamation suits. I am expanding this practice, using my free-speech expertise to represent in civil court more of the people who benefit indirectly from, and can afford to foot part of the bill for, my criminal First Amendment fights.