Month: April 2017

Calling This Lawyer Unethical And Incompetent Doesn’t Quite Capture His Basic Problem: He’s An Idiot

/ Jack Marshall / 30 Comments

http://www.youtube.com/watch?v=xGDbtT7D3hE

Defending his client of rape charges, Tennessee criminal defense lawyer Steve Farese told the jury during his closing argument,

“People can be very good at lying. Women can be especially good at it because they’re the weaker sex and we … and we want to protect them and not have anybody take advantage of them at least I do.”

Head-exploding  fact #1: The jury Ferese was appealing to by emphasizing the inherent dishonest nature of  “the weaker sex”  was made up of eleven  women and three men.

Head-exploding  fact #2: The jury still acquitted Ferese’s client.

That doesn’t make his argument ethical. The statement appealing to anti-women bias was a direct ethics violation, a breach of  Tennessee Rule of Professional 8.4 (d) forbidding lawyers from engaging in conduct that is prejudicial to the administration of justice, which deliberately appealing to anti-woman bias clearly is. For the future, the episode also raises questions about whether such a closing would breach the new ABA rule 8.4 g,  yet to be adopted in Tennessee or any state, which states that it is unethical for a lawyer to

“engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

The ABA notes specify that “This paragraph  does not preclude legitimate advice or advocacy consistent with these Rules.”

I am certain Ferese’s statement would breach 8.4 (g), not that it isn’t unethical anyway.

Continue reading →

The Attorney General’s “Island In The Pacific” Gaffe

/ Jack Marshall / 48 Comments

I guess we’re going to have to get used to this sequence over the next 4-8 years (yes, 8: at the rate the Democrats are disgracing themselves, President Trump may stick around):

1) President Trump and/or one of his surrogates, spokespersons or appointees make a carelessly worded statement

2) Democrats, activists and the news media intentionally, wilfully and maliciously interpret it in the worst way possible under the convetions of the English language

3) They widely represent the statement to the public as expressing malign thoughts intent and principles

4) The Trump-related speaker, being rhetorically-challenged to begin with, fails to clarify the confusion and makes himself or herself look worse the more he tries.

5) Nobody, almost literally nobody, bothers to examine the statement from an objective point of view.

Attorney General Jeff Sessions said last week, referring to the Hawaii -chambered federal judge Derrick K. Watson, who last month blocked Trump’s revised temporary halt on travel from sslected terrorist-rich Muslim countries just before it was to go into effect,

“I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and Constitutional power.”

It was an off-hand remark on conservative talk show host Mark Levin’s radio program, but it immediately provoked ridicule and attack. Sessions didn’t know Hawaii was a state. Sessions doesn’t respect Hawaii.  President Trump doesn’t like Hawaii. Just a few minutes ago, I watched ABC’s George Stephanopoulos confront Sessions about the remark. Sessions’ humina humina reply: “Nobody has a sense of humor any more.”

I understood the meaning of Sessions’ statement to Levin the minute I heard it, because I thought the same thing at the time of the judge’s ruling: Hawaii is the weirdest place for Trump’s order to be litigated, since the state  is uniquely insulated from the illegal immigration problems facing the other 49 states, has never had anything close to a terrorism attack, and has a negligible Muslim population. The particular problems that the President’s order purports to address is an abstract one for Hawaiians, more than any other state. Sessions’ comment was rueful, intended as irony (to a friendly interviewer), and none of the vile things it was subsequently accused of being. Continue reading →

“Hey, Look! Professor Chung Has A Painting In The Exhib—-WHAT THE HELL?????”

/ Jack Marshall / 37 Comments

While we’re on the topic of  “hate speech”…how about “hate paintings”? At public universities? Painted by faculty members?

An art gallery at the University of Alaska-Anchorage this month displayed the painting above, depicting actor Chris Evans as Captain America and holding  the severed head of President Trump while Hillary Clinton grasps Cap’s  legs like she is a slave girl and he is Conan the Barabarian.  The artist is UAA Painting Professor Thomas Chung, who  created the masterpiece as part of a faculty art program. Naturally it was accepted, just as it would have been if he had painted Thor holding up President Obama’s severed head. Of course it would have been accepted. After all, art is art. Academic freedom. Right?

Chung explains the artwork as something he chose to paint because he was upset at the results of the 2016 election. “I spent days just weeping,” he has said. Campus Reform quotes him  explaining his decision:

“I was really torn about putting this piece up at a faculty show, because I would never talk about my own political beliefs to my students. But I realized that I feel very strongly about this, and I think even students that might be pro-Trump supporters could benefit from having a conversation with me about why I feel this way—why I painted this.”

(By the way, the actual painting shows Evans/Captain America’s sex organs. None of the versions on the web do, though. Sorry!)

Random ethics observations, since I fear that painting may have caused some brain damage and I can’t seem to organize a coherent paragraph: Continue reading →

A Concise, Clear, Elegant, And Willfully False Unethical Tweet Of The Month From Howard Dean

/ Jack Marshall / 29 Comments

Howard Dean wants to make sure the Left’s war on free speech and expression continues, so he decided to misinform trusting Democrats and progressives—who trust the damnedest people lately!—with a Big Lie level tweet. His immediate target was Ann Coulter, whose speaking gig at Berkeley was first cancelled because of the campus’s rampant embrace of “the heckler’s veto” (as well as the “the thug’s veto,” “the bully’s veto,” and”the rioter’s veto,” all increasingly au currant on the Left) by the school’s students, then cleverly re-scheduled by the University to a day when there would be no classes. [Full disclosure: I wouldn’t move from my living room into my dining room to hear Ann Coulter speak.] Dean is a former chairman of the Democratic National Committee, arguably the worst of a terrible lot, and is an expert on “hate speech”, or at least hateful speech, having engaged in it himself often. Notably, for example, he insinuated that President Trump was a cocaine user during the 2016 campaign because a badly set microphone picked up his sniffling during a debate.

The nice thing about the progressive definition of “hate speech” (it has no legal definition, which is also convenient) is that it only includes statements that progressives disagree with or find disruptive to their world view and fondly held beliefs. Hateful speech from Democrats is just the hard truth, so it isn’t “hate speech.” Hate speech from everyone else is unprotected, and should carry criminal penalties.

There is no question that Dean knows “hate speech,” whatever it is, is protected by the First Amendment, but it suits his purpose and his party’s to imbed the lie that it isn’t in the mushy brains of the easily confused. This will greatly assist the Left’s ongoing efforts to stifle debate and make any dissent with progressive cant as difficult as possible. That’s the plan.

And again: progressives and Democrats should be as offended by this kind of dishonesty by their leaders as I am. Why aren’t they? Do they think Dean is correct? Do they think he should be correct? Or is it just that they believe that the ends justify the means? Democrats? Progressives? Hello? Integrity? Honesty? The Constitution? Bueller?

What the hell is the matter with them?

Constitutional law expert and law professor Eugene Volokh mostly controls his exasperation as he tries to set Dean and his uneducated acolytes straight. He begins a thorough dismembering of Dean’s tweeted lie in the Washington Post thusly: Continue reading →

Comment Of The Day: “Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen”

/ Jack Marshall / 11 Comments

The post about the absurd Arkansas judge who saw nothing wrong with taking part in some anti-death penalty protest theater shortly after halting some scheduled executions. Can we say “objectivity”? Sure we can!

The impetus for Steve-O-in NJ’s Comment of the Day was what could be called dicta in the original post about the dubious role models for judicial conduct currently sitting on the U.S. Supreme Court.

Here is Steve-O-in-NJ’s Comment of the Day on the post, Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen:

I agree that SCOTUS needs an ethics code, but, in all fairness, did Eisenhower, Kennedy, Johnson, or Nixon ever attack the SCOTUS or a decision in a speech or an address? FDR was far more politically powerful than Obama ever could hope to be, but even he knew when to back off the SCOTUS. That said, I wonder if he knew from the get-go he was going to break the 2-term tradition and just wait the court out, as justices either died or retired and he replaced them with like-minded judges.

What do you think of an age limit for Federal judges, setting either 70 or 75 as a mandatory retirement age? Although Article III judges serve for the term of their good behavior, arguably that Article didn’t conceive of Federal Judges living well past 70 regularly and living and serving into their 80s and 90s uncommon but now certainly not unheard of. If we can revisit Presidential terms of office, which we already have, if we can revisit the Electoral College, which we already have once and some are asking us to again, and if many vocally want us to revisit both the First and especially the Second Amendments, all of these due to changing circumstances (breach of the 2-term custom, the emergence of political parties, alleged hate speech, and the evolution of firearms beyond single shot muskets) then arguably we can revisit Article III as well.

Continue reading →

Florida State Senator Frank Artiles Resigns After Calling Colleagues “Niggers”…

/ Jack Marshall / 71 Comments

Obviously, we can’t have that conduct from an elected official. He had to resign; there is no question about that. Artiles was at a members-only club in Tallahassee earlier this week when he was speaking with fellow state Senators Audrey Gibson (D) and Perry Thurston (D), who are both black.  Artiles told them, in the course of an obscenity-rich rant, that “six niggers” had helped get Senate President Joe Negron  elected.

I’ll give Artiles credit for one thing: he didn’t resort the Pazuzu Excuse (“This isn’t who I am, and what I said does not reflect what I think or feel”), which is what almost all public figures in his self-authored predicament do. His resignation letter’s main section reads,

It is clear to me my recent actions and words that I spoke fell far short of what I expect for myself, and for this I am very sorry. I apologize to my family and friends and I apologize to all of my fellow Senators and lawmakers. To the people of my district and all of Miami-Dade, I am sorry I have let you down and ask for your forgiveness. My actions and my presence in government is now a distraction to my colleagues, the legislative process, and the citizens of our great State. I am responsible and I am accountable and effective immediately, I am resigning from the Florida State Senate. It’s clear there are consequences to every action, and in this area, I will need time for personal reflection and growth.

Not bad.

What the episode made me ponder is this: what does using “nigger” when speaking about a black man or woman tell us about the speaker? Continue reading →

Sexual Harassment, Victim Blaming, Toxic Corporate Cultures, President Trump’s Defense and Other Ethics Notes On Bill O’Reilly’s Fall (Part II))

/ Jack Marshall / 55 Comments

The Ethics Alarms audit of the Bill O’Reilly canning by Fox (okay, technically it wasn’t a firing, but it was) continues…

9. One problem with the Left’s thinly veiled joy at getting O’Reilly is that it encourages the Right’s narrative that O’Reilly’s only crime was being conservative. Also not helping were President Trump’s interview statements about O’Reilly to the New York Times, in which he said in part,

“I think he’s a person I know well — he is a good person… I think he shouldn’t have settled; personally I think he shouldn’t have settled. Because you should have taken it all the way. I don’t think Bill did anything wrong.”

Stupid, stupid, stupid; irresponsible. Maybe two stupids and two irresponsibles. Do otherwise good people engage in sexual harassment? Of course: good people do bad things. But when a prominent individual says publicly that a sexual harasser is a good person, it sends a message that sexual harassment, like all abuse, doesn’t create a rebuttable presumption that someone is not a good person. Add to that Trump’s last statement, “I don’t think Bill did anything wrong,” and the toxic messaging is complete. Either that statement means that the President is, based on nothing, claiming that the allegations against O’Reilly are untrue, or worse, he is saying that there is nothing wrong with sexual harassment. Based on his infamous exchange with Bill Bush, there is good reason to believe that this is exactly what he means.

10. That interview, in turn, led inevitably to this fatuous and offensive article by conservative blogger Roger Simon. Sure, Roger, you dummy, O’Reilly did nothing wrong except support Donald Trump. Count the rationalizations in this piece of offal by one of the shimmering stars in the Pajama Media firmament of conservative thought-leaders.

The sad truth is the many conservatives—most?—really don’t think sexual harassment is a big deal. It is one of many ethics blind spots.

11. One conservative who lacks that blind spot—though she has lots of others—is Sarah Palin, who had this exchange yesterday with CNN’s Jake Tapper: Continue reading →

Sexual Harassment, Victim Blaming, Toxic Corporate Cultures, President Trump’s Defense and Other Ethics Notes On Bill O’Reilly’s Fall (Part I)

/ Jack Marshall / 23 Comments

As you probably know by now, Twenty-First Century Fox Inc ended its relationship with Bill O’Reilly at Fox News following what are being called allegations of sexual harassment, the revelation of them in the news media despite Fox’s pay-out of over $13,000,000 to the women who were involved, and a subsequent wide-spread boycott of his high-rated show “The O’Reilly Factor.”

Ethics Observations:

1. Good. Long, long overdue, but good. Fox News should have fired O’Reilly after the first sexual harassment episode which was years ago; it is a firing offense in ethical organizations for most employees, and the fact that Fox allowed its most influential and most profitable star to skirt accountability and survive to harass again was a classic example of the rationalization known as The King’s Pass, or The Star Syndrome.

2. The fact that Fox News creator, leader, and boss Roger Ailes was also jettisoned after a sexual harassment scandal showed at the time that the organization had developed an unethical culture that was hostile to women….as Ethics Alarms pointed out last July. (“There seems to be a culture of sexual harassment at Fox, coming down from the rotting fish head in charge, Roger Ailes.”)  This was the other shoe dropping.

3. O’Reilly issued a carefully crafted statement composed with the assistance of a “crisis consultant”:

“Over the past 20 years at Fox News, I have been extremely proud to launch and lead one of the most successful news programs in history, which has consistently informed and entertained millions of Americans and significantly contributed to building Fox into the dominant news network in television,” O’Reilly said in a statement. “It is tremendously disheartening that we part ways due to completely unfounded claims. But that is the unfortunate reality many of us in the public eye must live with today. I will always look back on my time at Fox with great pride in the unprecedented success we achieved and with my deepest gratitude to all my dedicated viewers. I wish only the best for Fox News Channel.”

I would say the Bill is lying through his teeth with the “unfounded” part, but sexual harassers often don’t think they have done anything wrong. They think they were just being “nice,” or they think their advances were misunderstood, or they believe that the harassment accusations are a cover for something else. Ailes also denies that he did anything wrong. This is typical. It would have been a wonderful thing if O’Reilly could admit that his conduct was wrong and apologize to the victims while sincerely promising to change, but like most harassers, he couldn’t mount the character and the acknowledgement of hard reality to do it.

4. What is more damaging, perhaps, is that so many of O’Reilly’s fans and followers will believe his self-delusion because they also don’t “get” sexual harassment, and think the whole issue is manufactured feminist nonsense and political correctness. Boys will be boys! Everybody does it! 

5. If there is anyone who is informed and intelligent and still followed Bill O’Reilly without constant cognitive dissonance, they should be ashamed of themselves. If one was alert, Bill constantly revealed himself as a blowhard who was convinced he was smarter than he was, or perhaps more accurately, knew he was faking it and adopted a assertive, intimidating and self-righteous persona as cover for his own insecurities.  Continue reading →

About Fox News’ Fake Judge

/ Jack Marshall / 35 Comments

In a post on the Legal Ethics Forum, not as active as it once was but still one of the best legal ethics sites around, Legal ethicist and law professor Steve Lubet clarifies something I have always wondered about, and like a lazy slug, never investigated.

Fox News contributor Andrew Napolitano, most recently in the news for claiming that the British intelligence service GCHQ  colluded with President Obama to conduct surveillance on the Trump staff during the 2016 campaign, is always called “Judge Napolitano” during his appearances.  Lubet points out that he’s not a judge any more. Napolitano once served on the New Jersey Superior Court, but resigned in 1995 and has not held judicial office for more than two decades. It is apparently at Napolotano’s insistence that he is always addressed  as “Judge”  in Fox. His website, JudgeNap.com, refers to him as “Judge Napolitano” throughout, as does his bio on the Fox News site.

Lubet notes that The American Bar Association has held that  the use of  judicial titles by former judges practicing law is misleading and unethicalin connection with law practice.  ABA Formal Opinion 95-391 says that continued “use of the title is misleading because it may be misunderstood by the public as suggesting some type of special influence” or “to create an unjustified expectation.” In fact, said the ABA, “there appears to be no reason for such use of the title other than to create such an expectation.” Of course, Napolitano isn’t practicing law when he bloviates on Fox News, so it isn’t a Rules violation, but the Judge label is still misleading

The Ohio Rules of Professional Conduct, Lubet found,  goes further by decreeing that it is only ethical for a former judge to use the titles  “Judge” or “The Honorable” if they are preceded by the word “retired” or “former,” and the rule does not limit this caveat to ex-judges actively practicing law. Again, Napolitano is not out of compliance, because he is not subject to the Ohio Rules. That doesn’t make what he calls himself strictly accurate, or sufficiently accurate. (I confess, I have had a bias against such things ever since I suffered through a year with an insufferable  high school history teacher who called himself (and insisted that we call him)  “Dr. Arthur” because he had a PhD in history.) Continue reading →

The Umpire’s Botched Call, Moral Luck, And When Using Technology Becomes Ethically Mandatory

/ Jack Marshall / 36 Comments

The Washington Nationals beat the Atlanta Braves on Tuesday, but if they hadn’t, we might be seeing the beginning of tidal wave of public opinion demanding that available technology be employed to avoid catastrophic umpire incompetence.

Washington had a 3-0 lead entering the bottom of the ninth. The Braves mounted a rally,scoring one run and then loading the bases with only one out. At that point Nationals manager Dusty Baker  removed struggling closer Blake Treinen  for Shawn Kelley

Kelley got his first batter to foul out, and then appeared to strike out Chase d’Arnaud, swinging. The game was over: the Nationals came out to congratulate each other, and the ground crew moved onto the field. d’Arnaud, however, argued to home plate umpire C.B. Bucknor that he had foul-tipped the ball into the dirt before the Nat’s catcher caught it. Bucknor agreed, and everyone was called back onto the field.

Kelley struck out d’Arnaud again, so no harm was done. But  videos of the “foul tip”  showed that the batter hadn’t come close to hitting the ball on the pitch Bucknor ruled a foul tip. He missed it by a foot.

If d’Arnaud, given an unearned second chance, had cleared the bases with a ringing double, the baseball world would be going nuts right now; that he didn’t was just moral luck. It went kind of nuts anyway. Bucknor is a terrible umpire, as his awful calls showed throughout the game, which was a typical performance for him. If the botched foul tip call had occurred later in the season during a crucial game, or during the post-season,  it might finally prompt Major League Baseball to use available technology and have balls and strikes called electronically, or at least have a fail-safe review system where an umpire viewing pitched on a TV monitor could instantly overrule a terrible, obvious, game changing call by the home plate umpire.

At this point, it is irresponsible for MLB not to use the Bucknor botch as impetus to make these changes now, before a disaster, realizing that a lucky near-miss shouldn’t be treated any differently. It won’t, however. It will wait until the horse has not only escaped the barn, but escaped the barn and trampled some children, before putting a lock on the door.