Month: June 2016

Freddie Gray Prosecution Update: A Law Professor Formally Accuses The Unethical Prosecutor Of Being Unethical

/ Jack Marshall / 17 Comments

finger-pointing

George Washington Law School Professor John F. Banzhaf III has filed an ethics  complaint against State’s Attorney Marilyn Mosby with Maryland’s Attorney Grievance Commission. Banzhaf accuses Mosby in his 10-page complaint of breaching Maryland’s rules of professional conduct for lawyers, which requires that a prosecutor refrain from prosecuting a charge unless it is supported by probable cause, in her conflicted and incompetent prosecution of six police officers involved in the arrest of Freddie Gray. The complaint also flags Mosby’s improper use of public statements to bias the administration of justice.

Good.

Of course he is right, as I have repeatedly explained here, here, here, here, and here. I assume there have been other complaints before this one, but he has made the issue a high profile one, and that’s excellent news.

Mosby has earned the Mike NiFong treatment: the unethical prosecutor in the Duke Lacrosse rape case was disbarred, briefly jailed, and sued. She is black, female, and a Democrat, and NiFong remains one of the very, very few prosecutors to be punished significantly for unethical conduct. I will be amazed if the commission does anything momentous or sufficient to discourage grandstanding prosecutors like Mosby in the future, even though such prosecutors are willing to ruin lives for political gain.

I hope I am wrong.

(But I’m not.)

KABOOM! The Tale Of The Third-Grader’s Racist Brownie Offense: No, I Don’t Understand This At All

/ Jack Marshall / 79 Comments

brownies explosion

This story made my head explode, and thus it will be tagged “Kaboom!” Unlike most such Kaboom! posts, however, this one is likely to make my head explode every time I read it. Or think about it. Forever.

On June 16, a third grader made a comment about the brownies being served to his class during an end-of-the-year class party at the William P. Tatem Elementary School in Collingswood, New Jersey.  After another student opined that the remark was “racist,” the school called the Collingswood Police Department.

Okay, stop. I’m puzzled already, and my head exploded again just writing that:

  • How could a comment about brownies be racist? Did the child say, ” As with human beings, the blonde brownies are innately superior to the dark ones”? Somehow, I doubt it.
  • Another third grader pronounced the statement as racist. Not a teacher, now. An eight-year old. How can that trigger anything, in a sane world, but a discussion led by the teacher about what is and isn’t racist, and how people shouldn’t leap to such  inflammatory observations, because it makes human interaction difficult if not impossible?
  • The school called the police department? For what? A threatened brownie massacre? How is this conceivably a police matter? Why did the police come?

“What is the nature of your emergency?” “A third-grader in my class made an inappropriate remark about brownies!” “Calling 911 with prank calls is a crime, ma’am. Don’t do this again.” 

It is per se unethical and irresponsible for any police department to treat such trivia seriously.

All right,slogging on… Continue reading →

The Unethical Courtroom Exchange Of The Century!

/ Jack Marshall / 49 Comments

believe-it-or-not-1024x442

This would have been rejected by “Boston Legal” as too ridiculous.

In a Rome, Georgia court room, as others looked on, Floyd County Superior Court Judge Bryant Durham allowed himself to be provoked by a defiant murder suspect named Denver Allen.

What resulted was a rare (thank goodness) example of a judge lowering himself, his position, the court and the justice system to the level of those with no respect for the law or society. Here is a portion of the transcript:

 

dialogue 1

dialohue 2dialogue 3dialogue 4

 

Stay classy, Judge Durham. Continue reading →

Gene Autry Misinformation Update: Believe It Or Not, It Happened Again!

/ Jack Marshall / 20 Comments
"Wild Bill" Donovan, who should have had nothing whatever to do with my ethics seminar today, but did anyway...

“Wild Bill” Donovan, who should have had nothing whatever to do with my ethics seminar today, but did anyway…

Yesterday I wrote about a lawyer in a legal ethics seminar interrupting me with a revelation about Gene Autry that was completely false.

Today I taught another legal ethics seminar, this time for a government agency. I was discussing was the various government ethics dilemmas in “Bridge of Spies,” the story of how lawyer Jim Donovan helped secure the release of downed U.S. flyer Francis Gary Powers in a famous incident during the Cold War. Many of the issues covered in my presentation were explored in this Ethics Alarms post.

As the film portrays it, Donovan, an insurance lawyer, does such a tenacious job defending an accused Soviet spy from U.S. government prosecution that the CIA recruits him to broker the trade of his now-former client, convicted and in prison, for Powers. In discussing the classic government lawyer dilemma of “who is the client?,”  I noted that the CIA agent who recruited Donovan told him that he would have no client. “Why did the CIA trust Donovan?” I asked socraticly. “Why did Donovan, an insurance lawyer, think he was qualified to engage in this kind of representation, it it was a representation?”

For the second time in nine days, an attendee piped up with an amazing piece of information.

“I suspect some of the answer to both questions is that James Donovan was the son of “Wild Bill” Donovan, who is considered the father of the Central Intelligence Agency,” he said. Continue reading →

California’s High Speed Rail Fiasco

/ Jack Marshall / 26 Comments

The question posed by the unfolding California high-speed rail cataclysm is why the reaction to it should be a partisan or ideological issue at all. Are human beings capable of managing bias and learning hard truths from new information, or aren’t they?

High speed rail was promoted in California  as a green and virtuous way to propel commuters  from San Francisco to Los Angeles along at 220 miles an hour, completing the trip in a about  two and a half hours. It was going to involve minimal tax-payer cash,  with  billions arriving from private investors. It would be profitable, not requires state subsidies and be much less expensive than flying. Thus enthused and enlightened,  53.7 percent of approved the plan and a $9.95 billion bond.

It was a scam, a hustle, and a pack of lies.  Virginia Postrel writes at Bloomberg…

“California’s high-speed rail project increasingly looks like an expensive social science experiment to test just how long interest groups can keep money flowing to a doomed endeavor before elected officials finally decide to cancel it. What combination of sweet-sounding scenarios, streamlined mockups, ever-changing and mind-numbing technical detail, and audacious spin will keep the dream alive?”

Well said. I would add, “And will anyone learn from this fiasco?” Specifically, will anyone learn that ideologically-driven officials will always press policies in defiance of reality, if the public lets them, or more precisely, trusts them.

The Los Angeles Times published a stunning report on how corrupt this enterprise has been from the start. Here’s sample:
Continue reading →

No, Ashleigh, That Isn’t “Libel,” And Why Are You Hosting A CNN Show Called “Legal Affairs” When You Don’t Know That?

/ Jack Marshall / 5 Comments

Ashleigh-Banfield

In an epic clash of incompetents, CNN’s Ashleigh Banfield challenged Michael Cohen, one of Donald Trump‘s advisers over his retweeting an internet meme that said that Hillary Clinton “murdered” the victims of the Benghazi mission assault.

After the House Benghazi Select Committee released its final report on the 2012 terror attacks, Cohen delivered his tweet featuring this…

Cohen tweet

It is about as stupid, lazy and inflammatory as most political memes, and the fact that Cohen would think it worth circulating tells us all we need to know about both him and the man who pays him, who would have probably tweeted this junk himself if Cohen hadn’t. Remember Cohen? He’s the Trump lawyer who crudely threatened the Daily Beast and went on to proclaim that spousal rape was legal, when it isn’t. Cohen is, by definition, a thug, a creep, and a crummy lawyer. Naturally, he’s also a Trump advisor. (Tell me again how Trump, that keen judge of legal talent,  can be trusted to appoint better Supreme Court justices than Clinton would. Or that Honey Boo-Boo would.)

Sparring with Cohen on her show “Legal Views,” Ashleigh Banfield lectured the lawyer and told him, “This is libel.” thus making exactly as accurate a statement of law as Cohen’s earlier one about spousal rape. It was not libel. It was inflammatory political speech in a satirical context (would anyone think Clinton actually said this, as the meme suggests?) about a public figure, clearly an opinion rather than a statement intended to be taken literally, and no more libel than “Bush lied and people died.” Banfield’s diagnosis was 100% wrong, and the fervor with which it was delivered is the calling card of a Clinton defender. Continue reading →

The Washington Post’s Ethical Unethical Accurate Stupid Tone-Deaf And Dangerous Headline

/ Jack Marshall / 67 Comments
Go ahead, keep deriding "the people." Can't do any harm...

Go ahead, keep deriding “the people.” Can’t do any harm…

The big problem with the “elites” that conservatives and Trumpeteers keep demonizing is that they insist on acting and talking as if they are exactly as insolated and contemptuous of “the masses” as they are accused of being. Witness this headline on the Washington Post website, on the Wonkblog column:

Headline Post1

Talk about walking into a haymaker! This headline went viral on the conservative media and social media, with such comments as, “Know your place, peasants!” and  “Stand aside and pay attention to your betters!” As with many such incidents, the headline signals that some ethics alarms aren’t functioning in high places. How could this headline make it to the web without anyone seeing it and thinking, “Whoa! Hold it! That sure sounds like (another) call to authoritarian government, and this is the major paper in the Capital of what is supposed to be the cradle of liberty! We can print that, and if we think it, we have to be a lot more clear about what “some things” are.” What does it tell us that nobody had that thought at the Washington Post?

This is the realm of headlines, which, like internet memes and bumper stickers and Twitter posts, are not safe for expressing complex ideas, and should not be used by competent journalists to do so. Ultimately, in a representative democracy, the people do decide such things indirectly, by electing their representatives and punishing them with their votes if they don’t make decisions the public finds competent and beneficial. The Post web headline asserts an ugly and arrogant dichotomy between “the people” and what, their rulers? The intelligentsia? The aristocracy? The 1%? Journalists? Since trust in our institutions are at a dangerous low point, this is a mind-blowingly stupid thing to print, and plays directly into the hands of the anti-establishment hucksters like Trump and Bernie. Continue reading →

Four Supreme Court Decisions: Abortion, Guns, Affirmative Action, Corruption…And Ethics. Part I: Fisher v. University of Texas

/ Jack Marshall / 8 Comments
Abigail Fisher: Not dark enough to get "an equal shot"

Abigail Fisher: Not dark enough to get “an equal shot”

The under-populated U.S. Supreme Court recently made four decisions on issues with ethical principles involved. This is the first of four posts reviewing the ethics implications of the decisions.

I. Affirmative Action: Fisher v. University of Texas

The University of Texas’ admissions program guarantees admission to top students in every high school in the state. It is dubbed the  Top 10 Percent program, though the percentage cutoff is flexible. A second part of the admissions program admits other students from Texas and elsewhere using standards that take into account academic achievement and other factors, including race and ethnicity. Many colleges and universities base all of their admissions decisions on such grounds. The case before the Court challenged that part of the program, and presented an opportunity for the Supremes to finally declare affirmative action unconstitutional, as previous opinions hinted they might do some day.

This was not the day, however. Justice Kennedy, writing for the majority, said courts must give universities significant but not total autonomy in designing their admissions programs, writing:

“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness.’ Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.But still, it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

This defines either an ethical dilemma, which the Court’s majority is punting, or an ethical conflict…which the Court majority is punting. Is diversity an ethical objective, or a practical one, that is, a powerful non-ethical consideration? It is hard to argue that diversity in a student body isn’t desirable—to enhance the educational experiences of students, to avoid having a permanent, under-credentialed underclass, to “look like America.” However, fairness and common sense argue that admitting one candidate over another who is better qualified simply because of ethnicity or race is per se wrong. I don’t blame the Court at all for not making a clean call.

As usual, President Obama described the result in simplistic terms. “I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society,” he told reporters at the White House. “We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody.”

Thank you, President Obvious. The crux of the case, however, was what should be done when using race as a standard for admission to attain that diversity denies an “equal shot” to someone who has the misfortune to be white, like Abigail Fisher, or Asian-American. Continue reading →

The “Ghostbusters” Remake Controversy

/ Jack Marshall / 62 Comments

The fact that I even know about this issue is both my reward and punishment for being a popular culture junkie.

To bring you up to date: Since the stars of the classic movie comedy “Ghostbusters” are now collecting Social Security (and one of them—Harold Ramis— is dead), Hollywood’s only sensible option to try to squeeze some more profit out of the property (and maybe introduce it to a new generation) was to remake the 1984 film. This was a risky enterprise, for even the sequel with the original cast more or less recognizable was a disappointment, and remakes of classics are inherently dicey. If an original film really was special and the stars truly stars, forcing younger contemporary stars to step into iconic shoes is asking for not just trouble, but humiliation. Poor Alex Cord, for example, never recovered from being cast as The Ringo Kid in a misbegotten remake of  1939’s “Stagecoach,” where he was supposed to replace John Wayne. It can work, as with Jeff Bridges’ turn as Rooster Cogburn, not only a Wayne role but the one that got him an Oscar, only if the remake is sufficiently excellent and different enough in tone and purpose that the original and the remake can co-exist without compelling unflattering comparisons. (“True Grit I” is a funny John Wayne valedictory with a great story; “True Grit 2” is more faithful adaptation by the Coen Brothers of a wonderful novel. I still like the original better.)

The best option, though, is often to make the reboot different in appearance and feel by switching race or gender. This is also helpful when everyone over the age of 13 has seen the original on TV about ten times already. The scheme attracts a new audience, ideally—the first “Ghostbusters” had a male teen demographic—and allows the remake to refer to the first version without seeming like pale copy. Almost never are the non-traditional casting versions big hits, but they can be quietly profitable. “Ghostbusters,” moreover, is a merchandising machine. The original spawned cartoon versions and action figures. Why wouldn’t the new movie?

However this is 2016 America, and everything is political as well as partisan. An all-female remake of “Ghostbusters” was launched with feminist swagger. The new version starring Melissa McCarthy (love her) , Kristen Wiig (great)  and Kate McKinnon ( also great), excellent comic actresses, given good material, would show that women can and do everything men can do—fight ghosts, make hilarious supernatural movies, be President of the United States. The July opening in an election year was no coincidence; it is part of the Hollywood effort to join the media’s efforts to make Hillary President despite, well, her lack of fitness to lead.

Although the usual naysayers when a classic is recast were immediately critical, most moviegoers were enthusiastic about the project. I know I was. Then the trailer came out. It is bad (you can watch it above). We are used to seeing great trailers for movies that turn out to be boring and horrible, but good movies with terrible trailers are rare because making previews has become a fine art.

The strikingly unfunny “Ghostbusters” trailer was especially ominous for a comedy. The usual method for hyping a mediocre comedy is to put all the funny bits in the trailer; I hate that, don’t you? Not only is the whole movie an unamusing slog with 6 minutes of laughs in 90 minutes of filler, but you’ve already seen the best gags. What does it say, though, when a trailer for an alleged comedy isn’t funny, and worse, the gags included don’t appear to be as side-splitting as the movie’s makers seem to think they are?

Oh-oh. Continue reading →

Dear Guy In My Legal Ethics Seminar: No, Gene Autry Was NOT A Pornographer, And Shame On You

/ Jack Marshall / 34 Comments

ORG XMIT: NY21 Singing cowboy star Gene Autry is shown in an undated file photo. Autry, who parlayed a $5 mail order guitar into a career as Hollywood's first singing cowboy, died Friday, Oct. 2, 1998. He was 91. His death came less than three months after the death of his great rival, Roy Rogers.

In a legal ethics seminar last week, I was talking about ethics codes and referenced Gene Autry’s version of The Cowboy Code as an example of how most ethics codes could be easily adapted to other professions. I noted that Gene had an amazing career for such an unimpressive looking and sounding performer, with five stars on the Hollywood Walk of Fame, the only individual with that many. (Live performance, radio, TV, movies, and recordings).

“He was also a big producer of pornography!” an elderly lawyer in the front row piped up.

“What?” I said. “Gene Autry? Where did you hear that?”

“Oh, it’s true,” he insisted. “Made him a lot of money. He covered it up pretty well, but the truth came out.”

“Well, I’ll check on that. If true, it’s disillusioning. Thanks.”

But it was not true. I have a lot of material–Gene was active in both show business and Westerns, as well as baseball, so his career was and is very interesting to me—and I searched it and the web for any hint of a pornography reference. I can’t even find a web hoax alleging it.

Not only did that unsolicited bit of false biographical information undermine the point I was making about ethics codes, it spread false information about, by every account, a very nice man and an idol to millions. Now almost a hundred people have it in their heads that the guy singing “Rudolph the Red-Nosed Reindeer,” “Here Comes Santa Claus,” and “Back in the Saddle Again” left the studio and filmed orgies.

I don’t know who the guy was that did that to Gene, but it was an irresponsible, reckless thing to do. You can’t make a statement like that in public and smear a great man’s reputation unless you are absolutely certain of your facts.  Obviously he wasn’t sure of them, because they are complete fiction. It’s the kind of thing Donald Trump would say.

Here’s Gene: