Several things make this particular story necessary this morning. Most of all, it’s an ethics story with a happy ending. I’ve been hearing from several EA readers of late (and a lapsed, much missed commenter who had dropped out) who tell me that they the blog too depressing. So do I, which I suppose means that I need to perk up my tone and perspective a bit. I am generally able to muster enthusiasm and optimism, but I know that’s a bias that sometimes makes me naive. It’s sometimes difficult for me to distinguish between my reaction to some ethics tale that is objectively disturbing and the emotional hangover various crises I been wading through almost non-stop since early in 2020. I promise to do better.

The Waylon Bailey saga is also a nostrum of sorts to this post, my thoughts after watching the almost three-decade old “Indictment: the McMartin Trial.” People are always accusing me of being angry: I’m seldom angry. I’m not effective or persuasive when I’m angry. One reason I waited several days before writing about that HBO film and the outrageous failure of the justice system and culture that it represents is that I became furious while watching it, and had to cool off. It was difficult, because the developments in the so-called “lawfare” against Donald Trump kept reminding me of the Trump-Deranged progressive legal and political cultures and its allies and enablers in the mainstream news media that the McMartin history lesson mirrors in many ways. I wrote about that too recently, in the introduction to this post, in which I bemoaned the nearly overwhelming ethics blindness of my generally more distinguished colleagues in the legal ethics world regarding Fulton County DA Fani Willis. They have convinced themselves that her conflict of interests in the hiring of her lover as one of the prosecutors to bring the case against Trump is a “nothingburger,” but their detestation of the man seeps into almost every supposedly scholarly post. Willis has proved herself dishonest, biased, irresponsible and untrustworthy, and thus cannot be trusted to make independent and competent judgments in a case with such serious national consequences. That should be obvious to all, especially legal ethicists. But, as we all know (I hope), bias makes us stupid. Yesterday, Willis finally admitted in a court filing yesterday what she has been (unethically) refusing to confirm or deny since the scandal broke, instead taking on the pose of a distinguished lawyer being attacked by racists. (When she ultimately has to remove herself from this case, I wonder if Harvard will hold a “Gathering to Breathe and Heal” event for her as well.) Yes, Fani is involved in a “personal relationship” with a special prosecutor she hired. You can read the whole, ridiculously long brief here. “Personal relationship,” in my opinion, is deceit, making the brief unethical right off the metaphorical bat. She has a “personal relationship” with everyone in her office: her relationship with Wade was or is romantic, intimate, and unprofessional, and she should not get away with using a coded euphemism in a brief to a court.

But I digress…

Back to Waylon Bailey…I had not adequately covered the details of his unconstitutional arrest, but I will in the second part of this post. What I did write, burying the story in the sixth item of a September post containing, naturally, other depressing ethics news was this:

On March 20, 2020 as the Wuhan virus its tour of terror, Waylon Bailey issued a satirical tweet: “SHARE SHARE SHARE ! ! ! !”JUST IN: RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONTACT WITH ‘THE INFECTED’ SHOOT ON SIGHT….Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.”

The Brad Pitt reference is the tell: this points to his (excellent) zombie movie “World War Z.” Nonetheless, a SWAT team members from the Rapides Parish Sheriff’s Office surrounded his Alexandria, La., home and arrested Bailey without a warrant because, they said, his post was a terroristic threat. The district attorney decided not to prosecute him because the arrest was idiotic and an abuse of law, the Constitution, due process and power. In September 2020, Bailey filed a lawsuit alleging Detective Randell Iles and Sheriff Mark Wood violated his First and Fourth amendment rights. This week, an appeals court agreed that Bailey’s Facebook post was not a threat, did not incite violence, and could not be read as “intentionally directed to incitement” or “terrorism.” Bailey’s First Amendment right was breached, there was no probable cause to arrest him, and the officials responsible are not entitled to qualified immunity.

If law enforcement is handled by “professionals” ignorant of the Constitution and lacking the common sense of a mollusk, how hard is it for unscrupulous elected officials to weaponize law enforcement for political ends?

The rest of the story should give us hope, because ultimately justice was served. I could frame the fiasco as an ominous sign that our rights are hanging by a thread and our public officials are too stupid or corrupt to be trusted, but I won’t. I promise.