Five Bullets

          Hypotheticals are the life blood of law school. Students read a case and seek out its “holding,” the reasons underlying the court’s decision. The professor then posits modified facts and asks if the reasoning still applies or whether the decision should now be different. Both as a law student and a professor in a law school I played around with hypotheticals, but while sometimes intellectually intriguing, these were bloodless exercises. Grades might have been affected, but since the litigants were made up, money, property, and freedom were not at stake. However, on occasion in my public defender work what could have been a law school hypothetical appeared, and the resolution of the legal game determined whether someone went to prison.

          Hearsay was the issue on one of those occasions. I will spare you an extensive discussion of hearsay, but its definition is one that almost all students memorize. While it is easy to spout those definitional words, the concept is a difficult one. I would throw hypothetical after hypothetical at the student hoping to sharpen their thinking about what was and was not hearsay. This is an important distinction because the rules of evidence say that juries should not hear hearsay, even though there are dozens of exceptions that permit some hearsay to be heard. But the distinction between hearsay and non-hearsay remains important because if the evidence is not hearsay, the hearsay rule allows it. Thus, I used lots of hypotheticals to teach the hearsay concept, but it often seemed beyond the intellectual abilities of many of my students at a third-tier law school.

There came a time that in addition to the classroom teaching, I was doing an appeal for a public defender. I read the trial transcript, and a hearsay issue was at stake, one that, to my surprise and satisfaction, was almost the same as a stock hypothetical I had used in my evidence classes. I wrote a brief explaining that the disputed evidence was not hearsay and that, therefore, the defendant should have been allowed to have the jury hear it, and a retrial should be ordered.

          The prosecutor’s reply brief was written by a young associate of a prestigious law firm doing what I assumed was mandatory pro bono work. Her high-paying day job signaled that she had gone to a much more highly ranked law school then the one in which I taught. Even so, it was clear that she, too, failed to understand hearsay.

          I was confident when the case came for argument before an array of appellate judges. The issue was not one of interpretation or nuance. This was a classic case of non-hearsay; it should have been admitted. Its exclusion in the trial court caused an unfair trial. The conviction had to be reversed.

          After my introductory comments at the lectern, I firmly said, “This was not hearsay. It should have been admitted. The defendant was denied a fair trial.” And then I was taken aback. The presiding justice said, somewhat sheepishly I thought, “Explain to me again why this isn’t hearsay.” And I thought but did not say. “Oh, shit. She doesn’t understand hearsay either.” This, however, allowed me–for my only time in an appellate argument–to haul out some of my trove of law school hypotheticals, which I hoped I was doing in a non-condescending manner, for there is nothing worse for your case than to appear to be condescending to a judge. I don’t know that I was convincing. It may have simply been that the judge’s clerk had an adequate grasp of the hearsay concept and later educated the judge, but the court’s decision—correctly—ruled for my client, and he was released from prison. But I took credit believing that sometimes, law-school hypotheticals can have real-world consequences.

          An aside: I learned something about handling judges early in my career. My client’s son was charged with a rape. His father, on the advice of a lawyer, had offered the woman money in exchange for her dropping the charges. The lawyer, not the sharpest legal mind, had said that it was just like settling a civil case. The lawyer and the father were arrested for attempted bribery of a witness. The lawyer was being represented by a well-known, highly-regarded criminal defense attorney. He and I both had moved to dismiss charges and submitted briefs with several arguments supporting our position. The judge ridiculed our worked and ticked off how our contentions were unpersuasive. However, he then went on to say that we had ignored an argument, which he articulated. I started to interrupt the judge, planning to say, “But I said exactly that in my brief.” Before I could get started, my distinguished co-counsel grabbed my arm to make me stop and whispered to me, “If he thinks that he thought of it, we will win.” I stopped. We won.

          I have been thinking about that case and another after I recently wrote about a law-school hypothetical on this blog when I posted about the Texas abortion law. (See the three posts of “Let’s Expand the Texas Abortion Law: Search Results for “”Texas abortion”” – AJ’s Dad ( There I explained that a person who drove the robber to the bank was only guilty if the driver knew what the robber had planned. This had me thinking about the five-bullets case where I represented a young man charged with taking part in an attempted murder.

(concluded October 4)

Let’s Expand the Texas Abortion Law

 I admire the Texas abortion law. The admiration does not extend to its substance, which bans abortions once a fetal heartbeat is detected, about six weeks after conception. Its substance is blatantly unconstitutional. Instead, I admire the law for its ingenious enforcement mechanism and wonder how that mechanism could be extended to other new laws. But first, what do we know about the new abortion law in Texas?

Texas Senate Bill 8 (SB 8), the Texas Heartbeat Act, states that “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” In short, the doctor must test for a fetal heartbeat and keep records of those tests.

While this provision effectively outlaws almost all abortions, SB 8’s real innovation is its enforcement mechanism. Other abortion restrictions criminalize the procedure and put enforcement in state hands. Those seeking to prevent the application of such laws have sued to prevent the government officials from enforcing the statutes. In Roe v. Wade, for example, Wade was the Dallas District Attorney, and the plaintiff asked the court to enjoin or stop him from enforcing the abortion laws.

The Texas Heartbeat Act, however, expressly forbids all state and local government entities or officials from enforcing the law. Instead, the law “shall be enforced exclusively through the private civil actions described” in the law. The law states that “any person, other than an officer or employee of a state or local governmental entity in this state [Emphasis added], may bring a civil action against any person who: performs or induces an abortion” after a fetal heartbeat or “knowingly engages in conduct that aids or abets” such an abortion “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation” of the law. A person successfully bringing such a suit shall be awarded “statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced” after a fetal heartbeat or for each such abortion that a defendant aided or abetted.

 “Any person” can bring an action under SB 8. The law does not restrict claimants to Texans. Californians and New Yorkers can seek the money. That may be surprising, but even more surprising is the conservatives who enacted this law allow even undocumented migrants to be claimants. Indeed, the law on its face allows Russians and Chinese to bring the civil actions. Its breadth is breathtaking, [deleted because it seems to refer to an aborted fetal heart] but the expansiveness goes beyond the pool of people who can enforce the law; it includes a remarkable number of people who are liable under the law.

The statute authorizes an action not only against the doctor performing an abortion after detection of a fetal heartbeat, but also against anyone who aids or abets such a procedure. However, it makes a radical change to the legal concept of aiding and abetting. Liability is not limited to those who know or suspect that a prospective procedure will be illegal. Instead, the law provides for liability “regardless of whether the person knew or should have known that the abortion” would be performed after a fetal heartbeat. The aider or abettor can escape liability only if he or she “reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied” or would comply with SB 8. The law, however, does not give a clue as to what constitutes a reasonable investigation. Is asking the physician sufficient? Or must a person see and be able to interpret the heartbeat test result? Or perhaps an opinion from a second physician who is not otherwise connected with the proposed abortion will be necessary. Only when, if ever, courts authoritatively define a “reasonable investigation” can abortion aiders or abettors know how to avoid liability, and until then they will have the risk of liability for violating the statute.

The risk of liability is expanded by the law’s provisions that there is no defense for reliance on a court decision overruled on appeal, “even if that court decision had not been overruled when the defendant engaged in conduct that violates” the law. For example, assume that a court has ruled that a defendant had conducted a reasonable investigation by getting a signed assurance from the physician that no heartbeat has been detected. The nurse or anyone else assisting in other abortions may wish to rely on this court ruling. But wait. The nurse can still be liable if a higher court, perhaps years later, rules that a reasonable investigation now requires more than the signed assurance. The nurse will have years of risk of liability, and there will be nothing that person can do to mitigate the risk, except, of course, stop participating in abortions altogether, which seems to be one of the purposes behind the law.

The Fetal Heartbeat Act does not define what actions fall within aiding or abetting, and no one can now know what is covered, for this is a new concept. SB 8 unmoors the terms from their accepted meanings in criminal law. A person does not aid or abet a crime unless he at least knows that a crime is being or will be committed. Donald asks you to drive him to the bank because, he says, his car is at the mechanics. You do the favor, but once inside, Donald robs the bank. Since you did not know he was going to do that, you are not guilty of aiding or abetting the robber.

The Fetal Heartbeat Act, however, makes someone liable if he “knowingly engages in conduct that aid or abets” an abortion after a fetal heartbeat “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation”[Emphasis added] of the law. The driver, who knowingly drove the car, is only liable for the bank robbery if he also knew about the intended theft, but the abortion aider is liable without any knowledge of the forbidden procedure or perhaps without any knowledge of an abortion at all.

Uber dispatches a car to pick up a passenger. A woman, not visibly pregnant, gets in and the driver transports her to 123 Abbott Drive. The driver may not know that that destination contains an abortion clinic; he may not be aware of it even when he arrives since the clinic may keep a low street profile. An abortion in violation of the statute is performed. The Uber driver has no way of knowing about that procedure. Is the Uber driver civilly liable as an aider or abettor? I aid and abet a robbery only when I consciously transport the robber to the location knowing his plans. That action, with the guilty state of mind, makes me criminally liable. No guilty state of mind, however, is required for liability under the Fetal Heartbeat Act, but only the conscious act that aids. The Uber driver has knowingly transported the woman to the location and therefore should be liable.

Perhaps it seems farfetched to make the driver and Uber pay $10,000, but the literal words of the statute apply, and until the highest court in Texas rules otherwise, Uber and the driver are both at risk for at least $10,000 in damages. The claimant who seeks damages from the physician alleging a violation of the statute has every reason to include the driver and the company in the suit since it will take the claimant and the attorney little more time and effort to name them as defendants in addition to the doctor. With this risk hanging over such businesses, soon the drivers and companies will know that 123 Abbott Drive houses an abortion clinic and will refuse to take passengers there.        

But the risk for “third parties” extends to many more than Uber drivers.

(continued Sept. 22)