Month: May 2021

In Texas, A Court Puts Some Teeth In A Much Abused Legal Ethics Rule

/ Jack Marshall / 1 Comment

Tiger

The American Bar Association’s Rule 3.6, Trial Publicity, states in part, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Although the rule is long-standing and included more or less identically in all state legal ethics rules, it is honored more in the breach than with compliance. One has to look no further than the justice-tainting comments by lawyers and prosecutors in such cases as the deaths of George Floyd, Freddie Gray, and Trayvon Martin, but lawyers shooting off their mouths on TV, social media or in the press is common in many other kinds of litigation. Often they are violating not just Rule 3.6, but 8.4 (Misconduct) as well. Among other things, that rule prohibits lying.

Thus the Texas Supreme Court ruling last week was welcome news. The court held that lawyer statements about a client’s allegations in press releases and social media are not protected by the judicial proceedings privilege or attorney immunity. The judicial proceedings privilege protects statements made in open court, depositions, affidavits and other court papers. Attorney immunity protects lawyers from liability to non-clients when lawyers act on behalf of their clients in a “uniquely lawyerly capacity.” That means when they are clearly and appropriately speaking on behalf of their clients, in their roles as advocates.

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Post George Floyd Anniversary Observations: A False Narrative Kneels On America’s Neck

/ Jack Marshall / 23 Comments

Floyd white house

I’m sure many readers here feel that I am obsessed with this issue and are tired of my attempts to cut through the fog machine’s belches, but this is an ethics blog—a tiny, increasingly ignored ethics blog that is opposing the full force of a lying news media, a cynical Democratic Party, Machiavellian activists and dead-eyed corporate executives who just want to avoid controversy, and everywhere else, “Good Germans,” cowards who know the George Floyd Freakout narrative is based on falsehoods, but who just want to get along by going along.

So if I have to be a bit repetitious, so be it. There have to be a few oases of truth on the web.

Here are some excerpts from this morning front page story in the Times, insufferably headlined “The First Time The World Stopped And Noticed.” (Noticed what? That a drugged-out career criminal died on the streets as a direct result of his own persistent irresponsible behavior? That Minneapolis had a sadistic, mean cop who should have been kicked out of policing long ago? That a single, perhaps avoidable tragedy occurred in a city as the end result of a confluence of unrelated circumstances, the type of event that happens, has happened and will happen thousands of times every day across the country?)

  • “The crowds that gathered in Minneapolis and elsewhere reflected on what has changed, and what has not, in America since Mr. Floyd was murdered by a police officer.” The Times should know better, and I’m sure it does, but just doesn’t care. Until Derek Chauvin’s appeals are exhausted and he loses them—not at all a foregone conclusion—it is not factual to say he “murdered” George Floyd. On the facts, I still don’t see how it can be claimed that he murdered Floyd, since murder requires the element of intent. At most, the episode was negligent homicide, which is not “murder.” But referring to Floyd’s death as a murder became part of the false narrative from the second cell phone photos of the incident hit the internet, and it has hardened into “fact” in the minds of most Americans.
  • “Mr. Floyd’s daughter Gianna was invited to appear at an Atlanta rally titled, “My Daddy Changed the World.” Her Daddy changed nothing. He broke a law, resisted arrest, took drugs that might have killed him, and then had the manner of his death exploited, resulting in many deaths, billions in damage to communities, and mass disinformation.
  • “The battle for the soul of America,” [President Biden] continued, “has been a constant push and pull between the American ideal that we’re all created equal and the harsh reality that racism has long torn us apart.” This is shameless grandstanding for the rubes. All evidence indicates that Derek Chauvin was an equal opportunity bully. Nobody has been able to show he was a racist. Once again, this is the propaganda of presumed racism. If Chauvin were black and Floyd were white, and every other detail was identical to what happened in Minneapolis a year ago, nobody outside of Floyd’s family and friends would know his name. The incident had nothing to teach abut racism, except that it is a powerful and abused word currently being abused by demagogues and power-seekers.
  • “Speaking after the meeting, one of Mr. Floyd’s brothers, Philonise Floyd, pushed for more action on Capitol Hill. ‘If you can make federal laws to protect the bird which is the bald eagle, then you can make federal laws to protect people of color,’ he said.” Such an idiotic and offensive analogy is not worthy of publication, except to show how emotion rather than reason has dominated the entire fiasco. “People of color” are not an endangered species, and the greatest threat to their welfare is their own conduct, as in the case of George Floyd. Nobody is hunting them, but the paranoia that statement like this creates does lead to the dangerous tendency among blacks to resist lawful police authority.
  • “In New York, demonstrators said that the killing of Mr. Floyd had energized the Black Lives Matter movement that began after the death of Trayvon Martin in 2012, but that the country still had a long way to go.” Now there’s a good analogy: Trayvon Martin’s death also had nothing to do with racism, his killer was portrayed as a racist murderer of an innocent, politicians deliberately misrepresented the facts, and politically motivated prosecutors brought excessive charges. In that case, justice prevailed, however.

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Greer’s Ranch Cafe Et Al. v. The United States Small Business Administration: No Government Discrimination Based On Race Or Gender Means No Government Discrimination Based On Race Or Gender

/ Jack Marshall / 12 Comments

OK to be white

When the government says that it isn’t OK to be white (or male), that’s not just unfair, it’s unconstitutional. Why is this so hard to grasp? Why is it controversial?

Texas federal district court Judge Reed O’Connor ruled last week that the Biden Administration was engaged in racial and gender discrimination in the administration of pandemic relief funds under the American Rescue Plan Act. NO! The BIDEN ADMINISTRATION handing out special benefits to women and blacks to the disadvantage of whites based on no other distinctions but race and gender? Impossible! Completely out of character!

Thanks, I had a huge sarcasm lump in my gorge that showed up on my last X-ray as a horseshoe crab. Whew! Finally got that thing out!

Judge O’Connor found that the Biden administration deliberately engaged in systemic gender and race discrimination in implementing Wuhan virus relief for American restaurants. Café owner Philip Greer sued the Small Business Administration arguing that he needs the same financial assistance as minority restauranteurs under the newly enacted American Rescue Plan Act, since his Greer’s Ranch Café lost over $100,000 during the pandemic. But Greer learned that he could not receive benefits from the Restaurant Restoration Fund approved by Congress because he is the “wrong” gender and the “wrong” color.

The White House and the Democratic-controlled Congress want women, minorities and “socially and economically disadvantaged” people” to be first in line. $2.7 billion already has been distributed through the fund and there are almost 150,000 pending applications from owners who will get preferential treatment over Greer. The SBA confirms it already has requests for $65 billion in payments under the fund. Greer worries that he might not get any assistance at all….because he is white. And—yecchh!—male.

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Morning Ethics Warm-Up, 5/25/2021: The George Floyd Ethics Train Wreck Is One Year Old Today

/ Jack Marshall / 21 Comments

happy-birthday-cake-for-1-years-old-girl_225938

It really is amazing: I have already read three references today to George Floyd’s death as a cultural watershed in the U.S. society’s recognition of racial injustice, yet there remains not a single piece of evidence or a logical argument that Floyd’s death had any relationship to his race whatsoever. This was a manufactured narrative that the news media deliberately advanced in flagrant defiance of the facts. I have challenged more indignant progressives than I can count to justify treating Floyd’s death as anything but negligence and brutality by a local cop who should never have been allowed to keep his badge. All they can come up with is that the officer was white, and Floyd was black—in other words, presumed racism based on skin color, which is itself racism, or that the episode had a positive impact, justifying treating it as something it was not. That, of course, is an “ends justifies the means” rationalization.

The ugly episode is a lesson, not in “racial reconciliation,” but in how events can be manipulated for political gain—in this case, involving violent protests and virtual societal extortion— if there is no trustworthy news source to keep the public informed.

Today is also the anniversary of another ethics low in U.S. history. It was on this date in 1861 that President Lincoln suspended the right of habeas corpus so he could keep a Maryland state legislator locked up on the charge of hindering Union troops.

SCOTUS Chief Justice Taney issued a ruling stating that President Lincoln did not have the authority to suspend habeas corpus, but Lincoln, channeling his inner Andrew Jackson, just defied the Court. Five years later, another Supreme Court case held that only Congress could suspend habeas corpus.

1. The Confederate Statuary Ethics Train Wreck misses its biggest target. Good. The giant images of Jefferson Davis, Robert E. Lee and Stonewall Jackson carved into Stone Mountain as Confederate nostalgia’s answer to Mount Rushmore have survived the latest effort to tear them down. The Confederate flags at the base of Georgia’s Stone Mountain, placed there by the United Daughters of the Confederacy, will be removed, and new exhibits will offer a more thorough history of the park, including the role the Ku Klux Klan and resistance to desegregation played in its creation. Also good. The thing is a pro-Confederacy monument to be sure, a defiant one, but it also is a piece of history that should be seen, debated and thought about.

Many dedicated historical censors are upset that the mountain art will not be blown up any time soon. arguing that racist anger, not a desire to honor the South’s heroes, inspired the monument’s creation. OK, and so what? It is a vivid historical relic. Fall River’s Joe Aronoski, 82, told the New York Times after touring Stone Mountain, “It’s American history. It shouldn’t be destroyed. What are you going to do? Make-believe the Civil War didn’t happen?”

Well yes, that’s the general idea behind statue-toppling: make believe any events that make some people “uncomfortable” didn’t happen.

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More On The Andrew Yang “Racist” Cartoon: Some Perspective From The Ethics Alarms Archives…

/ Jack Marshall / 11 Comments

In contrast to the political cartoon discussed in the previous post, THIS is a racist cartoon. Below is the Ethics Alarms post from 2014 titled, “9 Observations On The Boston Herald’s ‘Racist’ Cartoon”:

1. I’m adding this new #1 right at the beginning—there were originally only 8 observations—because some of the early comments suggest that I over-estimated some of my readers’ scholarship, historical knowledge and/or sensitivity on this issue, so let me be direct:  the reference to any African- American having an affinity to watermelon is about a half-step from calling him or her a nigger, and maybe even closer than that. Clear? This is not a political correctness matter. If the reference is intentional, there can be no debate over whether it is racist or not. It is. The President of the United States should not be subjected to intentional racial slurs.

2. I’m amazed—I just don’t know how this could happen. How could this cartoon make it into print? Cartoonist Jerry Holbert explained that he came up with the idea to use watermelon flavor after finding “kids Colgate watermelon flavor” toothpaste in his bathroom at home. “I was completely naive or innocent to any racial connotations,” Holbert said. “I wasn’t thinking along those lines at all.” Is this possible? In a political cartoonist? On one hand, since the racial connotation is so obvious and so predictably offensive, it seems incredible that a cartoonist for a major daily would dare offer such a cartoon unless he really didn’t perceive the racial stereotype it referenced. On the other, the man is a political cartoonist, not a Japanese soldier who’s been hiding in a cave for decades. How could he not know this? How could his ethics alarms, racial slur alarms, survival alarms not go off?

I don’t get it.

3. Hence the quotes around “racist.” The only way the cartoon makes any sense to me is if Holbert is amazingly, wonderfully non-racist, and completely color blind. The flavor of the toothpaste is innocuous if one doesn’t think in racial terms at all. Maybe he just thinks about the President as the President. If so, isn’t that terrific? Wouldn’t it be great if everyone was like that? Wouldn’t it be swell if a dumb detail like the flavor of the toothpaste in a cartoon that has nothing to do with race OR toothpaste wasn’t even noticed?

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Political Cartoon Ethics: No, There Was Nothing “Racist” About Bill Bramhall’s Andrew Yang Cartoon

/ Jack Marshall / 3 Comments

Yang cartoon

Some day, in a more mature and enlightened America, we will have non-male and non-white candidates for elective office as well as elected officials whose supporters do not use the politicians’ race or gender to unethically intimidate critics by crying “Bigotry!” when there is none. Some day. Or maybe not. Right now, it is clear that such politicians and their supporters just can’t help themselves. It’s cheap, it’s unfair, it’s dishonest, but as Harry Reid ( or Niccolò Machiavelli) might say, “It works!”

It needs to stop working. I consider the routine use of that tactic to stifle legitimate criticism as an valid, if not necessarily decisive, reason not to support female or minority candidates.

The latest despicable example of the practice arrived in New York City, where a mayoral race is heating up. Evelyn Yang, wife of candidate Stephen Yang, attacked New York Daily News’ cartoonist Bill Bramhall for a characature she called a “racist disfiguration” of her husband.

Bramhall, a boringly predictable progressive cartoonist who draws Donald Trump to look like he ate Orson Welles, mocked Yang by exploiting the common complaint that he’s not a real New Yorker, but a carpetbagger who is naive about the ways of The Big Apple. Mrs. Yang, however, tweeted,

“I can’t believe my eyes. To publish this racist disfiguration of @AndrewYang as a tourist, in NYC where I was born, where Andrew has lived for 25 years, where our boys were born, where 16% of us are Asian and anti-Asian hate is up 900%.”

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Ethics Dunce: University of Illinois Chicago John Marshall Law School

/ Jack Marshall / 4 Comments

Marshall

You knew I couldn’t let this one pass.

The UIC John Marshall Law School is officially changing its name to the University of Illinois Chicago School of Law. The decision, a capitulation to the unethical mentality of the cancel culture and historical air-brushing strategy embraced by the political Left, comes after months of review by a task force. The resulting report noted, “that despite Chief Justice Marshall’s legacy as one of the nation’s most significant U.S. Supreme Court justices, the newly discovered research regarding his role as a slave trader, slave owner of hundreds of slaves, pro-slavery jurisprudence, and racist views render him a highly inappropriate namesake for the Law School.”

The most influential and important jurist in U.S, history is a highly inappropriate namesake for a law school. Got it.

John Marshall was the fourth chief justice of the Supreme Court, (1801 – 1835), and the only essential one. He authored the majority opinion in Marbury v. Madison (1803) that established judicial review, giving the Court power to declare legislative acts and executive actions unconstitutional. Without Marshall, the Constitution wouldn’t work. He took a bold and controversial step to ensure that basic rights and principles would not be wiped out by a rogue Congress or a dictatorial President. How many landmark SCOTUS decisions does the nation owe to Marshall as a result? How different would our lives be without his deft adjustment to the balance of the Branches? Would the United States of America even exist at all?

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White Supremacy Confirmation Bias: How Do You Argue With Someone Who Reasons Like This?

/ Jack Marshall / 16 Comments

confirmation_bias

A blog that has been out there much longer than mine (and which conveniently leaves the blogger’s identity mysterious) argues that “implementing vaccine passports would be a white supremacist measure.” The Biden administration is encouraging such documentation, and the ultra-woke state of Oregon has announced that these will be required for its citizens to go unmasked in any indoor, public-access gathering. I am not concerned here with the wisdom of the policy. I want to know how anyone can have a rational conversation with someone who is convinced such a measure is evidence of “white supremacy.”

Whoeverthehellheorsheis writes,

“[P]oor people are much less likely to be vaccinated than higher-income persons…According to the long-set standards of Black Lives Matter and other critical-theory advocates, whether racial disparities like this are intended or not is irrelevant. These disparities are the results of racial discrimination and white privilege baked into the social-legal-medical networks for centuries. Therefore, it does not matter that this gap in immunization is not intended. It does not matter that the men and women managing the vaccine program and distribution, or administering it to the public, do not discriminate at the vaccine sites by the race of persons who come for the shots. Lack of deliberate intent does not excuse systemic racism. The fact that matters is this: “Black and Latino people are far more likely to live in poverty than white people, and despite having died at higher rates throughout the pandemic, they are receiving fewer vaccines than white people.” 

The argument is instructive, which is why I am bothering to publish it. If any disparity exists in any area where blacks and other non-white groups have statistically less positive outcomes than whites, it is per se proof of “white supremacy.” The fact of statistical variation is the proof, and reasons don’t matter. This is an especially useful example, because there is no reason at all for poor people or minorities not to be vaccinated. The vaccinations are free and ubiquitous. The greatest cost imaginable would be a cab ride. One doesn’t need online access to get one.

Minorities and poorer populations—they are not the same thing—are lagging behind in getting the shots, and by choice. Now, in the case of African Americans, an argument could be made that systemic flaws in the school system, or systemically rooted inadequacies in nutrition leading to cognitive damage, or pockets of African American culture crippled by paranoia and superstition as an outgrowth of centuries of abuse from slavery, are examples of harm from past white supremacy. However, a policy that only confers a disadvantage on a group because that group chooses to be disadvantaged cannot be condemned as an expression of hostility toward that group, or as a means of keeping that group disadvantaged.

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Monday Ethics Madness, 5/24/2021: Ramalamadingdong

/ Jack Marshall / 9 Comments

1. Headline from The Great Stupid: In today’s New York Times, front page, before the fold: “Crime Surging, Cities Reassess Policing Limits.” Wow! Who could have seen that coming? There’s plenty of stupid in the main body of the article too. For example, it quoted LA citizen Helen Jones, an African-American woman, thusly: “I don’t care how bad it gets — no one wants more cops. We don’t need tougher police, we need more alternatives to help people thrive.”

This is yet another example of what Homer Simpson called “Ramalamadingdong”: meaningless blather (like “Give peace a chance”) that people just say as if it communicates anything coherent, when it doesn’t. Laws have to be enforced. Law enforcement requires police, and sometimes force. There is no alternative to law enforcement if people are going to “thrive.”

It’s unethical to advocate for policies that are in defiance of reality, Helen. Shut up. You’re not helping.

2. Ah, yes, the old “I’m only human” defense. If Gretchen Whitmer, Michigan’s dictatorial governor who has distinguished herself with multiple arbitrary restrictions on personal liberty using the pretense that she was fighting the pandemic, wasn’t such a proven hypocrite and phony maybe her apology for being caught red-handed violating her own protocols might be a little more credible. But Whitmer is a weasel, so when photos surfaced showing her openly violating her mandated social distancing guidelines at a restaurant, happily socializing with a large group of unmasked friends—you know, the Special People— at the Landshark Bar & Grill, her mea culpa can’t be taken seriously. “Throughout the pandemic, I’ve been committed to following public health protocols,” Whitmer said in a statement reported by the Detroit News.  “Yesterday, I went with friends to a local restaurant. As more people arrived, the tables were pushed together. Because we were all vaccinated, we didn’t stop to think about it. In retrospect, I should have thought about it. I am human. I made a mistake, and I apologize.” Continue reading →

Ethics Miscreants In Yet Another Police-Involved Death Ethics Train Wreck

/ Jack Marshall / 13 Comments

Ronald Greene

Another death of a black man in an encounter with the police has re-emerged from 2019, this time from Louisiana. It has even more of the unethical elements of past tragedies/botches/fiascos than usual, and the cast of characters are all playing their now familiar parts to maximize the likelihood of protests, riots, political grandstanding and confusion, not to mention more deaths and further damage to race relation and law enforcement. Good job, everyone!

This is a true ethics train wreck, because nobody, literally nobody, who has been involved with the episode so far has behaved ethically. At this point, I see no hope that the mess can be cleaned up, but maybe we can learn something from how thoroughly another Police Meet Black Lawbreaker disaster has been mishandled by everyone to ensure the worst conceivable outcome. In no particular order, here is a list of those responsible for the Ronald Greene Ethics Train Wreck.

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