Update: Indictments in Roberts sex/extortion case still pending

by Ted Frank on February 6, 2007

We first covered the case of Ted H. and Mary Schorlemer Roberts Jun. 13, 2004 and Sep. 3, 2005:

According to a story in the San Antonio Express-News, husband-and-wife legal partners Ted H. and Mary Schorlemer Roberts received money in a curious sequence of events. Mary, claiming to seek “no strings” discreet encounters, would seduce men over an Internet dating service. Ted would then write the men (in legal documents sometimes typed by Mary) and notify them that he planned to seek intrusive and public civil discovery to investigate whether the affair brought forward potential causes of action that were flimsy at best; the men would pay tens of thousands of dollars for a release and confidentiality agreement.

Now:

Two San Antonio, Texas, lawyers, married to each other, face a trial on theft charges based on allegations that the wife had sexual liaisons with four men whom the husband subsequently threatened with litigation unless they compensated him for his emotional distress.

You’ll never guess how the Roberts’ lawyer defends them:

[Michael] McCrum contends the state is trying to prosecute his clients for something that civil lawyers do all the time — send demand letters and present petitions they plan to file under Rule 202.

“By stretching statutory words to an unprecedented interpretation, the state seeks to criminalize as “theft the presentment and subsequent settlement of potential claims authorized under the Texas Rules of Civil Procedure,” Mary and Ted Roberts alleged in one of several motions to quash their indictments that Harle dismissed in October 2006. …

[Baker Botts attorney Rod] Phelan says there is “a kernel of truth” in the point that McCrum is making. “The line between extortion or blackmail and making a demand to settle a colorable claim is gray,” he says.

The prosecutor distinguishes the two by noting that Ted Roberts was acting pro se. (Mary Alice Robbins, “Married Lawyers Face Trial for Payment Demands After Wife’s Affairs”, Texas Lawyer, Feb. 6). Note that these are theft, rather than extortion charges, however; a stretch, to be sure, but the prosecutors decided that Texas law does permit extortion in these circumstances. (It does seem rather appalling under the prosecutors’ view that the only thing Roberts needed to accomplish his blackmail is to expand the conspiracy to a third person.) Unfortunately for the extortion victims, their identities were revealed by the indictment and the Texas Lawyer coverage. A job for ReputationDefender?

{ 12 comments }

1 Ima Fish 02.06.07 at 8:34 am

“Unfortunately for the extortion victims…”

I don’t really feel sorry for the “victims.” The best way to avoid being embarrassed by your behavior is to not do embarrassing things. I’m assuming those guys were married or maybe had girlfriends, probably had kids, but they chose to violate their loved ones and sleep around.

And I’ve always assumed that upholding the right to contract was one of the bedrocks of this blog. If these guys willingly agreed to pay money to keep their indiscretions secret, where’s the harm? No one ever put a gun to these guys’ heads.

2 Ted 02.06.07 at 9:21 am

If these guys willingly agreed to pay money to keep their indiscretions secret, where’s the harm?

Addressing Ima’s comment would involve more time and space than I have to devote to the comments section, but I refer one to Richard Posner, “Blackmail, Privacy and Freedom of Contract,” 141 Pa. L. Rev. 1817 (1993), before assuming that freedom of contract extends to such transactions:

Assailant points a gun at Victim,
saying, ‘Your money or your life.” Victim is very eager to accept the
first branch of this offer by tendering his money. There are thirdparty
effects, but the essential objection to the transaction is that
Victim would prefer a regime in which such transactions were outlawed,
because it would reduce the probability of his receiving such
unwanted offers. (A qualification is discussed later.) In this case a
restriction on freedom of contract protects a contracting party ex
ante.

Similarly, people desperately eager to pay blackmail would prefer
not to be blackmailed and would therefore prefer a regime in which
blackmail is forbidden. That cannot be decisive against legalizing
blackmail, because others might benefit. But it shows that blackmail
cannot be approved on economic grounds just because it is a
voluntary transaction between consenting adults; not all such
transactions are wealth-maximizing. The alternative to economic
analysis in both the duress and the blackmail case of playing with
the meaning of “voluntary” just adds a layer of confusion.

3 cowpill 02.06.07 at 9:59 am

I think personally that the defense lawyer has a point but; is misguided in his defense. What he is claiming is no different than what the RIAA or litigants in california do with the disabilities laws, the difference here is proving that the defendants show malice or deception in their actions; which can be done with a few e-mails, letters and even to some extent testimoney of the victims. Whether these Gentleman chose to pay it is still extortion if the request for payment is less than honorable

4 Deoxy 02.06.07 at 5:34 pm

This is quite claerly extortion… the claim itself is utterly ridiculous, it’s the threat of litigation that brings the payment.

And of course, the same thing happens all the time in other cases, as he pointed out… and I think most of those are immoral and unjust as well.

5 Ima Fish 02.07.07 at 11:31 am

Ted, that is exactly why I specifically said that no one pointed a gun to the “victims” heads.

Please explain to me where anything similar to having a gun pointed at their heads occurred?

They willingly had sex and they willingly paid to keep it quiet.

Sure, they were not happy about paying. I wasn’t happy when I bought my last vehicle. I’m not happy when I go to the grocery store. No one is happy when they have to turn over money. But that doesn’t make it criminal.

The “victims” paid for quiet and got it until the police were involved and screwed up their deal.

6 Deoxy 02.07.07 at 12:02 pm

Ima Fish,

There is no form of blackmail that does not fit that pattern. You are arguing for the decriminalisation of ALL blackmail.

Perhaps you meant to and think that’s OK, but that’s not what society as a whole thinks, nor is it the standard of law at this time.

7 Colin P. Varga 02.07.07 at 12:45 pm

I believe there are two separate issues. The victim is committing a wrong (which may be criminal in some states I suppose) the victim is trying to have sexual relations outside of marriage. The woman lawyer seems to be engaged in an extortion racket. If the first is a crime let the men be prosecuted, if society will be better for it. However, the greater harm is being done by the lawyers. Often we judge the victims, why was the victim walking in an unsafe area, etc. That the lawyers can make an argument for their case is apparent but I believe a judge &/or jury can see through the text of their “case” and see the intent. The lawyers picked the victims based on the possibility of public embarrassment. Potential victims who would not be embarrassed were probably ignored, so the woman was not looking for men to have sex with but men who could be extorted.

Of course go to trial would mean that a jury would have to listen to testimony about a lawyer having sex, and this might present a reason for a judge to throw out the case.

8 Ima Fish 02.07.07 at 12:45 pm

“it’s the threat of litigation that brings the payment.”

So every time a party settles because of a threat of litigation a crime of extortion has been committed? I’m really curious where the “gun to the head” portion of this crime exists.

9 Ian Maitland 02.07.07 at 1:33 pm

“I’ve always assumed that upholding the right to contract was one of the bedrocks of this blog.”

If Roberts offered a “no strings,” “discreet” sexual encounter and that was accepted, then Roberts is threatening a breach of contract. If the men paid tens of thousands of dollars to Roberts to prevent her making the encounters public, then that would likely be a case of duress, which would make the second “contract” voidable. The victims of the ambushes should be able to recover their tens of thousands of dollars. Cold comfort perhaps, but at least they get to cry all the way to the bank.

10 Deoxy 02.07.07 at 1:56 pm

It’s not the threat of LITIGATION, Ima… it’s the threat of disgorging private (and embarrassing) information.

That’s what blackmail IS. The litigation threat was ENTIRELY a vehicle for publication of said information.

That’s wwhy I listed most such cases as merely “fraud”, not necessarily blackmail.

11 cowpill 02.07.07 at 2:35 pm

As I have seen on many occasions, the threat of litigation does promt payment in some cases because even though the accused might be innocent it is easier to pay a settlement that to fight it in court. To me this is extortion, but economics dictate this as legal so it continues, what these lawyers have shown is criminal intent to defraud a person of his right to privacy(if there is such a thing).

12 TC 02.08.07 at 2:07 am

Texas, aint adultry still on the books as being against some law?

File a suit against both of them for adultery. Or better yet file a criminal complaint against them!

Outside of that, seems like something is seriously f***ed up in Texas! I mean, daaum don’t they realize that folks have been kilt n shit fer less?

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