Year: 2019

Sentencing Ethics: The Perplexing Relevance Of “Acquitted Conduct”

/ Jack Marshall / 14 Comments

Senators Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that if passed and signed into law would  prohibit the use of so-called “acquitted conduct” at sentencing. What is acquitted conduct, you might ask? It is charges for which a defendant has been found not guilty that a sentencing judge nonetheless considers when sentencing that defendant for the crimes the jury says they did commit. This practice give prosecutors a special edge. Knowing that a judge may consider at sentencing every offense the prosecutor charges, a prosecutor can charge a defendant with an offense he knows he can prove beyond a reasonable doubt, and then charge more serious offenses that he probably can’t  prove. Even if jurors only reach a guilty verdict on the charges proved beyond a reasonable doubt, and refuse to convict on other charges, a judge can, and often does takes all the charges into consideration at sentencing.

“If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment,” Grassley said in a statement released this week. “That’s not acceptable and it’s not American.” Under the law he is proposing with Senator Durbin, if a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then sentences you should be able to consider only offense you were found guilty of.

What’s going on here? It is simply that the Federal sentencing rules currently allow a judge to consider crimes he or she believes the defendant is guilty of committing regardless of what the jury decided, just as a judge can take other factors into consideration. In such cases, a judge may use a preponderance of the evidence standard, not the criminal law standard of  beyond a reasonable doubt, to conclude that the jury was wrong and that a sentence should reflect conduct other than what the prosecution was able to prove to the jury’s satisfaction. Continue reading →

Saturday Ethics Warm-Up, 9/28/2019: The Search For Inspiration

/ Jack Marshall / 18 Comments

I need inspiration today…

1. No, this isn’t it…The Idiot Air Traveler. At a certain point, extreme stupidity is unethical. In China, a Xiamen Airlines passenger opened the emergency exit door of the aircraft as the plane was preparing to take off because she  felt the cabin was “too stuffy” and wanted “a breath of fresh air.”  She was arrested, and the incident caused the flight to be delayed an hour. How stupid and ignorant does someone have to be to do this? Wouldn’t you say this is signature significance indicating idiocy? Would you hire someone who did this even once? Allow her to take care of your children? Trust her with sharp objects? Allow her to buy a ticket for another plane trip?

2. Nor this.. New York City intentionally violates the Constitution. It is now against the law in New York City to threaten to call  immigration authorities on someone or refer to them as an “illegal alien” when “motivated by hate.”  A 29-page directive released by City Hall’s Commission on Human Rights announces fines of up to $250,000 per offense for, among other things, “the use of certain language, including ‘illegal alien’ and ‘illegals,’ with the intent to demean, humiliate, or offend a person.”  Mocking people because of their accents or grasp of English is also a crime now in the Big Apple. So is threatening to call ICE.

“In the face of increasingly hostile national rhetoric, we will do everything in our power to make sure our treasured immigrant communities are able to live with dignity and respect, free of harassment and bias,” said Carmelyn Malalis, the agency’s commissioner.

Maybe the whole set of new regulations isn’t unconstitutional, but the ones focused on “hate speech” certainly are. The city is simply declaring its contempt for the First Amendment with this stunt.

3. I guess this is kind of inspiring...When it pays to be trans. The old Saturday Evening Post used to have a feature called “The Perfect Squelch,” regaling its readers with a witty comeback or rejoinder that left an adversary defeated and demoralized. It wouldn’t have printed this one, but I can’t imagine a better example of the genre. This is Faye Kinley… Continue reading →

Australia Goes Right Past Nanny State To Dog-Walker State

/ Jack Marshall / 6 Comments

The new Australia law’s sponsors…

And all you thought they would do to stomp on individual rights  was to take away everyone’s guns! No, that was signature significance, you see. A state that decides that it, and not its citizens, should decide how they get to protect themselves is not going to stop with that. As Clarence Darrow said in the Scopes Trial, “Fanatacism is ever busy and needs feeding.  Always it is feeding and gloating for more.”

Down Under they just passed something called the the Animal Welfare Legislation Amendment Bill. Among its provisions is one that holds that dog owners can face heavy  fines if they keep their dog confined for 24 hours. Unless they then allow the dog to  “move freely” for the next two hours or face prosecution. That’s just a sample, however: the Australian Capital Territory’s new law says…

A person in charge of an animal commits an offence if the person fails to give the animal —

  • (a) appropriate food; or
  • appropriate water;
  • appropriate treatment for illness, disease or injury; or
  • appropriate shelter or accommodation; or
  • a clean and hygienic living environment; or
  • appropriate grooming and maintenance; or
  • appropriate exercise; or
  • appropriate opportunities to display behaviour that is normal for  the animal; or
  • care that is appropriate for the animal’s well-being.

No vagueness there! Maximum penalties include heavy fines , imprisonment for up to a year, or both. The territory is the first jurisdiction in Australia to recognize animal sentience, which apparently means the legislators let dogs write the legislation. Not smart dogs, either. Basset Hounds maybe. Irish setters.

Here are the particulars on dog-walking: Continue reading →

Observations On Neil Cavuto’s Oddly-Timed Scolding Of President Trump

/ Jack Marshall / 12 Comments

Fox News host Neil Cavuto decided to vent his frustration with President Trump yesterday, delivering a direct rebuke, addressing him in the second person. You can read the whole statement below after the commentary, or before, if you prefer.

I like Neil Cavuto. He’s a nice guy, he’s sincere, and he tries to be fair. He even had me on his show once. The format he chose, the Keith Olbermann direct address [Keith: “And why is it, SIR…”], I detest, and feel is pompous and inappropriate. Its a fake confrontation: Cavuto wouldn’t talk to the President like that if he were really in front of him, so it suggests boldness on his part that is illusory rather than real. It’s also arrogant grandstanding. Who is Cavuto to reprimand the President? He can give his opinion like anyone else, but talking to him through the camera like he was a naughty child is presumptuous.

In general, Cavuto’s point is undeniable: Trump’s constant puffery, exaggerations, contradictions, spontaneous utterances  and recklessness with the facts undermine his credibility, infuriate both allies and foes, and give ammunition to those who want to destroy him. In short, his habit is stupid. However, this was a known feature of the man’s style and character a decade ago. No, he can’t or won’t change, and that’s a weakness.  But who didn’t know this? Does Cavuto really think his tirade adds anything to the public’s knowledge? Does he think the President is going to reform because Neil Cavuto takes him to task?

In the specifics of his argument, however, Cavuto’s logic is so shaky that I wondered if he really thought his rant through, or, in the alternative, is not as smart as I thought he was. His initial sally is a non sequitur: the fact that President Trump frequently mangles the truth doesn’t make the news media  any less dishonest, incompetent and untrustworthy. Since a vast amount of the fake news polluting the public’s understanding of the issues involves fake news designed to undermine Trump, he has every right, and I believe a duty, to call it what it is.

Is Cavuto’s showboating just a member of the journalists’ club standing up for his colleagues against their adversary? It sure sounded like it.  He seemed to be mouthing the same excuse I hear from Facebook enablers of the biased media: “Yeah, well, OK, Rachel Maddow was hyping the Russian story and using dubious evidence, but Trump lies even more!” President Trump’s job is to run the country. Not being truthful can get in the way of that, but being accurate is not his job, nor is it one of his duties. Journalists, in contrast, are ethically obligated to inform the public truthfully no matter what whoppers a President may tell. The President doesn’t make the news media lie, so to say he provides the “ammunition” for fake news is nonsense. Cavuto is excusing lousy, dishonest, and divisive journalism. Continue reading →

Morning Ethics Warm-Up, 9/27/2019: Five Indefensible Ethics Breaches, In Approximate Order Of Harm Done [Corrected]

/ Jack Marshall / 40 Comments

And it’s a beautiful day…

1. Probably the last Boston Red Sox baseball ethics note of the 2019 season…In yesterdays’ meaningless afternoon game with the Texas Rangers, the Sox, who will finish the season an incredible 24 wins or more worse than last season’s championship team despite essentially the same squad and no major injuries, faced starter Mike Minor, who was seeking to end his season with 200 strikeouts, a milestone that might earn the free-agent-to-be an extra million or so on the open market this winter.

Minor entered his last start of the season at 191 strikeouts, and began the top of the ninth inning with 199 and a solid lead. Sox catcher Sandy León flied out to left field for the first out, bringing up sub-.200 hitter Chris Owings.

[Notice of Correction: Apologies to Chris Owings fans, if there are any, for originally misstating that Owings was a minor league call-up. In fact, he had been a journeyman infielder with the NL Diamondbacks. for six seasons until landing in the AL this season.Thanks to Other Bill for setting me straight. ]

With a 1-1 count, Owings popped up a pitch  halfway down the first base line in foul territory. Rangers first baseman Ronald Guzmán appeared to let it drop, trading out #2 for strike #2, and thus giving Minor a shot at his 200th strikeout. Minor got it when routinely incompetent home plate umpire CB Bucknor called strike three on a ball well out of the strike zone.

Manipulating the game’s results so a player can fatten his stats is unethical and hurts the integrity of the game. Guzmán  and the Rangers should be fined by MLB.

2. Our unprofessional, biased and untrustworthy public schools. Watson B. Duncan Middle School in Palm Beach Gardens, Florida is investigating a teacher who included this question on a test:

Continue reading →

Ethics Verdict: The Democrats Will Be 100% Responsible For The Damage The Impeachment Will Do To The nation.

/ Jack Marshall / 33 Comments

Impeachment, though it is doomed to fail, will be terrible for the country in too many ways to count, and the Democratic Party, abetted by the mainstream news media, will be 100% responsible for the harm. Not 75%. Not 99%. 100%.

I know I’m going to have to write a lot in the coming months about this, and I’m already sick of it, but if progressives, the media and the Democrats had treated this President as every one of his predecessors had been treated, we would not be here. They all decided to actively search for a justification to remove this President from office without an election. The calls for impeachment and contrived legal excuses to remove him began before Trump even took office.

It is satisfying, I suppose, in a mordant way, that the Democrats somehow trapped themselves into using one of the lamest and least persuasive justifications for an impeachment inquiry imaginable, and will pay a steep, steep price for it. Even the fact that the party and the media will suffer greatly for their attack on democracy, however, does not sufficiently mitigate the damage they will have done to the nation. Continue reading →

The Sequel To The “It’s OK To Be White” Stickers: “Islam Is Right About Women” Flyers

/ Jack Marshall / 25 Comments

In Winchester, Massachusetts (right next to my old home town of Arlington!)  flyers reading “Islam is RIGHT About Women” suddenly appeared around the town, fastened to trees, utility polls and street signs in the familiar manner of those “lost cat” notices.

An “alarmed” woman brought two flyers to the Winchester Police Department, and officers subsequently found eight more, including one that was posted outside of an elementary school. The flyer presented multiple dilemmas. Police said the signs were not threatening and considered free speech. But because they were placed on town property, the flyers technically violated town ordinances. Yet those lost cat flyers were always allowed to remain.

Some residents were adamant that the signs should come down: one who spoke to a local TV station, Jim Leary, said, “Putting signs up that make people feel uncomfortable is unfortunate, particularly in this time and age.”

Really? Sounds like you’re not too fond of free speech, Jim!

The police took the flyers down. Constitutional law professor Eugene Volokh wrote, citing Members of the City Council v. Taxpayers for Vincent (1984), that the content of the flyers’ message  is constitutionally protected, but that the city could take down the ones that violated town law  so long as it wasn’t discriminating based on the viewpoint of the signs.  But of course it was, since the lost cat flyers were never taken down.

What’s going on here? The Professor played dumb, writing, Continue reading →

Why American Colleges Are Increasingly A Waste Of Money, Time, And Minds: A Case Study From American University

/ Jack Marshall / 35 Comments

American University in Washington D.C. (Full disclosure: I once taught legal ethics at the law school there) employs Ibram X. Kendi as a history prof and  Director of the Antiracist Research & Policy Center. He writes, and thus advocates, utter nonsense like this, from his recent opinion piece  in Politico:

To fix the original sin of racism, Americans should pass an anti-racist amendment to the U.S. Constitution that enshrines two guiding anti-racist principals: Racial inequity is evidence of racist policy and the different racial groups are equals. The amendment would make unconstitutional racial inequity over a certain threshold, as well as racist ideas by public officials (with “racist ideas” and “public official” clearly defined). It would establish and permanently fund the Department of Anti-racism (DOA) comprised of formally trained experts on racism and no political appointees. The DOA would be responsible for preclearing all local, state and federal public policies to ensure they won’t yield racial inequity, monitor those policies, investigate private racist policies when racial inequity surfaces, and monitor public officials for expressions of racist ideas. The DOA would be empowered with disciplinary tools to wield over and against policymakers and public officials who do not voluntarily change their racist policy and ideas.

Continue reading →

Afternoon Ethics Tea, 9/26/2019: A Drunk Lawyer, A Disgraceful Congressman, Uncivil Peanut Butter And The Dolls America Needs [UPDATED!]

/ Jack Marshall / 36 Comments

These trustworthy scones are divine!

1. First, the important stuff: peanut butter ethics. Now Jif, the peanut butter, has joined the detestable ranks of consumer products that deliberately evoke the vulgarity “fuckin'” in its advertising. Booking.com was the first company chided here for this particular offense against minimal civility, when I wrote,

Ethics dictates that one communicates with respect for anyone within hearing distance, and unless ugly words serve a material purpose, using them is not the mark of a good citizen, a good neighbor, or a trustworthy human being. Nor is spouting vulgarity witty, and unless you are 11, and employing obvious code words that sound like curses, epithets and obscenities isn’t especially funny either, since we pretty much exhausted the possibilities at summer camp. I have no idea why anyone would want to recast the culture as a place where professionals curse like sailors and the words “fuck” and “cocksucker” are as likely to issue from a debutante’s lips as those of a hip hop artist, but that seems to be the objective now. … TV stations happily accept money from advertisers using code words for “ass” (Verizon), alluding to sexual intercourse (Reese’s), and evoking the word “shit” (K-Mart and DraftKings).

Booking.com no longer uses this device, but Jif now pronounces itself “Jif’n good!” Fortunately, this peanut butter aficionado regards Jiff as the least of the  national brands and varieties (1. Skippy Natural 2. Skippy regular, 3. Peter Pan crunchy 4. Peter Pan smooth…and Jif, bringing up the rear.

Now I won’t even buy this peanut smutter when it’s on sale.

2. Apparently the mainstream media AND the Democrats are determined to dash what’s left of their rotting credibility to smithereens with this last ditch impeachment push:

  • Today’s “Japanese Bombs Pearl Harbor” size headline across the New York Times print edition: TRUMP ASKED FOR ‘FAVOR’ IN CALL, MEMO SHOWS.” Again, this would be really funny if it wasn’t so destructive.
  • Showing unprecedented lack of respect for the office of President (and proving beyond any doubt that no American who wants fair and objective reporting on politics should tune into MSNBC), the network’s Nicole Wallace cut off the  audio at President’s   first news conference since House Democrats opened a formal impeachment inquiry,, saying,  “We hate to do this, really, but the president isn’t telling the truth.”
  • In Congress, on TV, Rep. Adam Schiff read into the record his “paraphrase” of the transcript of the President’s phone call to the Ukraine President. Sample:

“I’m going to say this only seven times, so you better listen good, I want you to make up dirt on my political opponent, understand, lots of it, on this and on that, I’m going to put you in touch with people.”

“Is he just making this up?” Committee member Mile Turner (R-Ohio) asked. Indeed he was. Althouse’s commenters are having a field day on this. Ann’s readership is ideologically mixed, but you couldn’t tell that from the utter contempt Schiff’s stunt inspired. Continue reading →

Still MORE From The Ethics Alarms” Res Ipsa Loquitur” Files: That “Whistleblower” Complaint

/ Jack Marshall / 21 Comments

Nnnnope. not this either.

Here’s all you have to read, in my view:

In the course of my official duties, I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election. This interference includes, among other things, pressuring a foreign country to investigate one of the President’s main domestic political rival ls. The President’s personal lawyer, Mr. Rudolph Giuliani, is a central figure in this effort. Attorney General Barr appears to be involved as well.

  • Over the past four months, more than half a dozen S. officials have informed me of various facts related to this effort. The information provided herein was relayed to me in the course of official interagency business. It is routine for U.S. officials with responsibility for a particular regional or functional portfolio to share such information with one another in order to inform policymaking and analysis.
  • I was not a direct witness to most of the events described. However, I found  my colleagues’ accounts of these events to be credible because, in almost all cases, multiple officials recounted fact patterns that were consistent with one another. In  addition,  a variety of information consistent with these private accounts has been reported.

Amazing. Continue reading →