The Fruit of the Poisonous Tree is a century-old legal doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was discovered as a result of illegally obtained information or evidence. If the evidence”tree” is “poisoned,” so is its “fruit.” The doctrine was established in the 1920 case of Silverthorne Lumber Co. v. United States; Justice Felix Frankfurter gets credit for the metaphor from his 1939 opinion in Nardone v. United States.
There are three exceptions to the rule. The evidence will not be excluded if it was discovered from a source unrelated to the illegal activity, if its discovery was inevitable, or if the connection between the illegal activity and the discovery of the evidence is weak. The most famous example of the doctrine in action is probably “Dirty Harry,” where a mad serial killer is set free because detective Harry Callahan locates where the maniac had buried a girl alive by torturing him until he revealed the information..
The “fruit of the poisonous tree” analogy has turned up in the Ethics Alarms comments and elsewhere on the web regarding a possible application to voter fraud in the 2020 election. The theory: even if enough votes in a particular state can’t be conclusively shown to have been fraudulent to change that state’s winner in the Presidential election, substantial proof of cheating by the party prevailing in that states’ voting ought to invalidate the result, since the vote total itself was the result of cheating, and the entire election is “poisoned.”
There is a lot wrong with the theory and the analogy, both from a legal and an ethical perspective.
Monty Python legend John Cleese apparently has decided that to hell with it, he’s going to get himself canceled, and he doesn’t give a damn if he is. The tweet above was part of a long string of them tweaking transgender activists, J.K. Rowling haters and more, but his “woke joke” was especially apt.
The Australian singer Sia (never heard of her—you?) wrote and directed an soon-to-be released movie titled “Music” about a young woman with autism. Music is played by actress Maddie Ziegler, who is apparently not on the autistic spectrum.
One of the things November 22 changed was my wedding: we were scheduled to get married on November 22, 1980, until I protested that I did not want to have the anniversary of what was going to be one of the happiest days of my life coincide with one of the most traumatic days in my childhood, and in the nation’s history.
On this date in 1963, John Fitzgerald Kennedy, the 35th president of the United States, was assassinated while traveling through Dallas, Texas, in an open-top convertible. Kennedy was, in some ways, the opposite of Donald Trump, a youthful, inspiring, charismatic President who radiated promise and good will, and who seemed poised to lead a united and vibrant America into the second half of the 20th Century. It was all hype: JFK’s was the ultimate “golden dancer presidency” even before Barack Obama. As P.J. O’Roarke writes this week in Commentary, Kennedy “was a man of no abiding political principles, a plagiaristic pseudo-intellectual, a liar about his health and fitness, and a gross philanderer. But, it turns out, he also wasn’t a very nice guy.” Yet he made the nation feel good, optimistic, excited about the future. His sudden death was shattering and transforming in ways, I would argue, even 9/11 couldn’t match.
The previous assassination had occurred when McKinley was shot, leading us into the era of Teddy Roosevelt and Progressivism. Kennedy’s death made the U.S. lurch into the Vietnam era, campus activism, civil rights protests, Richard Nixon and Watergate, and the drugs, sex and cynicism of the Sixties. They might be listening to more boring music in the multiverse where JFK lived to a ripe old age, but I’d take my chances with it.
Talk about an ethics train wreck! Gross incompetence allowed Kennedy to be vulnerable to a sniper that day. The Dallas police let Jack Ruby shoot and kill Lee Harvey Oswald on live TV. The official Warren Commission report of 1964 concluded that neither Oswald nor Ruby were part of a larger conspiracy to assassinate President Kennedy, but few believed it, and irresponsible conspiracy-mongers from Jim Garrison to Oliver Stone were able to exploit the giant holes in the report to plant a cancer of suspicion and distrust that has thoroughly metastasized. In 1978 Congress issued a “preliminary report” that Kennedy was “probably assassinated as a result of a conspiracy” that may have involved multiple shooters and organized crime.
That was one magic lugee.
1. And while we are on the topic of cult figures who died tragically…Netflix’s “The Crown” has revived all-matters-Diana, and now the BBC has reopened an inquiry into how journalist Martin Bashir arranged his sensational interview with the late Princess in which she openly attacked the Royal family and Prince Charles. A two-part documentary that aired on the British network ITV on last week included allegations that Bashir used dishonest tactics to earn Diana’s trust and persuade her to tell tales “out of school” with candor unprecedented in Royal Family history.
The documentary claims that Bashir used doctored bank statements to convince Diana that royal employees were being paid to spy on her.The British Broadcasting Corporation, which originally aired the interview on its “Panorama” program, announced that it would open an independent investigation into the allegations.
The 2020 election has provided fertile ground upon which Republicans can spend the next four years doing to Joe Biden what the Democrats did to Donald Trump and George W. Bush.
For four years, Democrats and their media allies trumpeted every claim, no matter how baseless or crazy, that Trump’s 2016 election win was illegitimate and fraudulent. Despite zero evidence that so much as a single vote was interfered with, Democrats peddled the hoax that Russia interfered in the 2016 election to elect Trump. Even after the Mueller investigation exonerated Trump and his campaign from the collusion canard, Democrats, led by the shameless Adam Schiff, continued to allege collusion. Their simple goal was to undermine and delegitimize the Trump presidency. It clearly worked to the degree some voters turned their backs on Trump even as they voted Republican down-ballot….
Though he managed to get far more done than people give his team credit for, Trump governed under a dark cloud for most of his presidency. His team had to waste precious time and energy defending him against the Mueller investigation with its phalanx of Democratic hitman lawyers and corrupt FBI personnel. The media aided this assault by running stories over the last four years based on anonymous sources, several of which ended up being false. No president has had to undergo so thorough an investigation on such thinly-sourced claims. Trump may be lots of things, but he is as patriotic and faithful to America as any man who ever occupied the Oval Office….
…The fact of the matter is Biden’s call for unity is like the kid in your class who lost every game, but always shouted ‘starting now’ only after he was ahead. In the days since Biden asked Republicans to turn the other cheek, his old boss Barack Obama launched his book promotion by claiming that Trump only won in 2016 because too many Americans are racists. Obama followed that left hook to Main Street America by then denigrating Trump as a dictator despite the fact that it was Obama who arrested and investigated journalists during his presidency.
…One legacy of Trump is he taught Republicans how to fight back. Thus, what’s good for the goose is good for the gander. Biden will now serve under a cloud of suspicion and feel the heat as investigators dig into every nook and cranny of his family’s life. If Republicans pick up the handful of seats they now need to take back the US House in 2022, Biden and the Democrats will rue the day they made Schiff their attack dog.
Once again I am horribly behind in posting deserving Comments of the Day, or even announcing them. I apologize for this; there are many reasons, but no excuses. This COTD , authored by Null Pointer, is three weeks old, and there are some unposted ones that are older still. Fortunately, the topic is ever-green, at least as long as Shut-Down Hell is upon us: the curse of Zoom.
This is annually the last day before everything goes bananas in Marshall World. From now until New Years, its like the Nantucket Sleigh ride, not quite as dangerous, but not as much fun either. November 22 is the anniversary of Kennedy’s assassination, my generation’s 9-11. It changed everything. The 23rd is my anniversary, #40, which my son is sure to forget and my wife, for various reasons, doesn’t like to celebrate. Next is Thanksgiving, always depressing now because what was once a vibrant table of 7-15 relatives and friends is now at most four and a lot of wistfulness. My birthday comes on December 1, forever tainted because my perverse father chose the date to die on, and fate chose me to find his body. Then it’s the anxious run-up to the Christmas holidays, which always follows in the deadest period for ProEthics, meaning that we are counting pennies at the one time of the year we don’t want to be. (There is also the annual tree drama, since both my family and Grace’s were addicted to real, meticulously decorated trees, and we have a 20 foot ceiling which makes any tree less than 8 feet look silly. The thing takes about 2500 lights, which I have the responsibility of hanging, and then over a hundred mostly unique ornaments, beginning with the yarn Santa my mother made for Jack Sr. and Eleanor’s first scraggly tree in their new Cape Cod-style home in Arlington, Massachusetts. It was 1948. Getting our tree up and decorated to family standards takes about twelve hours and multiple First Degree prickle wounds. I can’t wait.
1. No, I’m not surprised that the Catholic Church sexual abuse cover-up went straight to the top. Are you? I’m not even disappointed. This is what organizations and institutions do: they protect themselves, and sacrifice the victims of their misconduct.
The Vatican this month released a report that showed Pope John Paul’s role blame in allowing the disgraced former prelate Theodore E. McCarrick to continue in the Church’s hierarchy.
The investigation, commissioned by Pope Francis, who canonized John Paul in 2014, reveals how the Pope ignored a wave of accusations of sexual abuse and pedophilia against McCarrick. Three popes participated in the cover-up, but one of them, John Paul, has been canonized. So Catholic saints are now accessories to rape.
A reversal of the canonization, which may never have happened, is unlikely, but it may slow the rush to canonize future popes.
Our longest-lasting neighbors, now approaching their 80’s, are as nice a pair as I could imagine. When we moved into the cul de sac 40 years ago, we were the neighborhood’s young blood. Their two children were pre-teens; our son was 15 years from existing at all. Through the years, Red and Beth have helped us in every way imaginable. Red’s old pick-up truck hauled the set of my theater company’s first production. Beth has provided barbecued chicken, home harvested honey and pickles. We’ve dined together and partied in each others’ homes. Now their Husky-German Shepard mix ( a designer breed with the ridiculous name “Gerberian Shepsky”), Peaches, is Spuds’ best playmate.
I was sitting with Red in our neighbor’s back yard watching the two dogs run and frolic, when for no discernible reason, he launched into a diatribe about about his cousin’s wife. “She’s ‘an intelligent, educated woman with 6 grandkids, and yet she just thinks Donald Trump is wonderful. She actually voted for him! This is a woman, and she supports a man who has been charged with all these sexual assaults and even rape, and who cheated on all his wives and paid off mistresses and porn stars. Jack, I just can’t understand it.”
One area in which the likely arrival of the Biden administration will surely signal furious back-tracking efforts will be the perpetual moral and ethical controversy over capital punishment. The execution of Orlando Hall was the eighth since the Trump administration revived capital punishment for federal crimes and the first of three scheduled during the presidential transition, if there is one.
The progressive way of the moment is to minimize or eliminate any punishment whatsoever for crimes. President-sort-of-elect Biden, in an exuberant moment, said during the campaign that there shouldn’t be prison time for any non-violent crimes. (Any non-violent crimes, Joe?) In the throes of the George Floyd Ethics Train Wreck, the bonkers concept has been promoted by the Black Lives Matter constituency that the justice system is so racist that punishing any black citizen for any crime is perpetuating “systemic racism.” Here’s Ellie Mystal, The Nation’s “justice correspondent,” writing way back in 2016:
“Black people lucky enough to get on a jury could use that power to acquit any person charged with a crime against white men and white male institutions. It’s not about the race of the defendant, but if the alleged victim is a white guy, or his bank, or his position, or his authority: we could acquit. Assault? Acquit. Burglary? Acquit. Insider trading? Acquit.Murder? … what the hell do you think is happening to black people out here? What the hell do you think we’re complaining about when your cops shoot us or choke us? Acquit. Don’t throw “murder” at me like it’s some kind of moral fault line where the risk of letting one go is too great. Black people ARE BEING MURDERED, and the system isn’t doing a damn thing to hold their killers accountable. Sorry I’m not sorry if this protest idea would put the shoe on the other foot for a change.”
Mystal isn’t alone, and since the death of Floyd with a white police officer’s knee on his neck, his logic, if you can call it that, has become infectious. Race is a factor that may signal bias by jurors: major political leaders, pundits are and academics are arguing directly that all whites are prejudiced against blacks, and Mystal’s ilk are calling on black jurors to acquit even guilty black defendants as cultural “tit for tat.” (Ellie’s a lawyer and still reached this conclusion, and still is employed as an authority. But don’t get me started on Ellie.)
It is time to reconsider and perhaps revise the absolute principle the Supreme Court articulated in Batson v. Kentucky, 476 U.S. 79 (1986), the landmark decision ruling that a prosecutor’s use of a peremptory challenge in a criminal case, dismissing a juror without stating reason for doing so, may not be used to exclude jurors based solely on their race. After all, if all whites are secretly or subconsciously hostile to blacks, they can’t be trusted to judge the guilt of a black defendant, and if blacks are being urged to fight systemic racism and “mass incarceration” by acquitting guilty black criminals, they can’t be trusted either.
Maybe what we need is all Asian-American juries.
But I digress…slightly. Here was the ABA Journal’s headline regarding the execution of black death row inmate Orlando Hall: “Federal inmate tried by all-white jury is executed after Supreme Court lifts execution stay.” Justices Breyer, Sotomayor and Kagan, the so-called liberal minority on the Court, dissented from the Supreme Court order allowing the execution to proceed without explaining their dissent. They don’t have to. Biden has said he will work to end the use of capital punishment by the federal government, reversing President Trump’s support for it: the Left considers the death penalty to be an 8th Amendment breach, “cruel and unusual” punishment.
Unable to provide actual guidance that restricts the spread of the Wuhan virus, unable to be consistent in their various “scientific” pronouncements, unable to avoid utter hypocrisy by violating their own measures, and insulting our intelligence by implying that the pandemic doesn’t bother Black Lives Matter and the Democratic Party, the various state governments are now reduced to pure fearmongering, apparently in the vain hope that if everyone is terrified to do anything or interact with anyone, that will keep the Wuhan virus at bay, and, perhaps even more importantly, condition Americans to Love Big Brother.
Well, to hell with THAT.
When I saw today’s new, revised, extra scary risk wheel from the Colorado Department of Public Health and Environment (CDPHE), I thought it was a Babylon Bee joke. Sadly, it’s not. Sufficient numbers of idiots and would-be human-sheepherders in the Colorado state government decided that the usual DefCon 5 Red Zone wasn’t enough to frighten Coloradans sufficiently to meekly allow the government to wreck their businesses, stunt their children’s social and educational development, make them poor, and confine them to house arrest. These bureaucrats are so dim that they don’t realize that the sillier and more desperate they act, the less likely anyone with self-respect and a brain is going to care what they say.
It’s really simple. If you don’t have the fortitude to stand up for your opinions, resist bullying and tell the social media mobs to go fry an egg, then shelter in your metaphorical womb, check with the Woke and The Wonderful about their latest agenda items and directives so you can parrot them accurately, and shut the hell up.
At least Galileo was threatened with torture by an authority that wasn’t bluffing before he retracted what he knew to be true. What was Kelly Stafford, the wife of Detroit Lions quarterback Matthew Stafford, afraid of? Yet she quickly followed up her video, which was 100% correct, with a nauseating retraction on Instagram, as she wrote,