Author: Jack Marshall

Now THIS Is The Appearance Of Impropriety…

/ Jack Marshall / 17 Comments

impropriety

The big legal ethics story of the day is a Wall Street Journal report showing that 131 federal judges, appointed by nearly every President from Lyndon Johnson to Donald Trump, have violated federal law by failing to recuse themselves in cases where either they or family members held a financial interest in one of the parties, meaning that the judge’s decision could have resulted in a direct or indirect benefit. This is, of course, a conflict of interest. Even if the judge was as trustworthy as a saint and would never dream of allowing such a conflict to interfere with his or her judgment, allowing these cases to appear before them violates the judicial ethics canon requiring judges to avoid even the appearance of impropriety.

The Wall Street Journal report found that the judges failed to recuse themselves from 685 court cases since 2010. About two-thirds of all federal district judges had holdings of individual stocks, about one of every five of these heard at least one case involving those stocks without withdrawing. When these judges participated in such cases, about two-thirds of their rulings on motions favored the party that their or their family’s financial interests would benefit from prevailing.

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Pre-Road Trip Ethics, 9/27/2021…

/ Jack Marshall / 22 Comments

Clearly, everything I know about life I learned from “Animal House.” I know. Sad.

I am foolishly trying to get up one last post before starting out on the 2 hr and 34 minute drive in the dark to Charlottesville, where I will be doing a three hour CLE seminar in a debate format with my old friend and tormentor John May. John, among other things, is a much-sought after defense attorney for lawyers accused of malpractice and ethics violations. In the matter of legal ethics, he takes a pragmatic, law firm practice approach, so in this course, titled “Ethics Wars!,” he plays Darth Vader to my Yoda. At least that’s how I look at it. You can find details about the session here, where you can sign up for the live or recorded version.

1. Birth of a Big Lie. In Del Rio, Texas, tens of thousands of people who have illegally crossed the border have been living for more than a week in a makeshift camp under a bridge. A photographer took a photo of a Border Patrol officer on horseback trying to stop people who were trying to cross the Rio Grande River illegally. Sawyer Hackett, who works for former Obama HUD Secretary Julian Castro, tweeted it out claiming, “Border patrol is mounted on horseback rounding up Haitian refugees with whips. This is unfathomable cruelty towards people fleeing disaster and political ruin. The administration must stop this.” Of course, the Border Patrol doesn’t use “whips,” but facts don’t matter, and a Democratic Administration prefers to vilify and falsely impugn its own law enforcement officers when to advances the narrative of the Good Illegal Immigrant.” Biden’s paid liar Jen Psaki appeared on CBS Morning News on claiming that Border Patrol agents’ actions were “horrific and horrible.” “That’s not who the Biden and Harris administration is,” she said.

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Note To Democrats And Progressive Totalitarians: Trolling Is Protected Speech

/ Jack Marshall / 34 Comments

Mug-White-BG

A member of the House of Representatives, backed by thousands of likes and retweets, erupted:

AOC twet mug

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Having To Argue The Obvious On Gender Identity: “Trans”

/ Jack Marshall / 16 Comments

lienear constant

it’s not as catchy as “Bias makes you stupid, ” but “Ideology makes you unethical” is just as true. However, just as bias is unavoidable, ideologies of some kind are necessary. The trick is to find one that doesn’t do more harm than good.

The diagram above was explained to me by a friend, fan and boss, the late Richard Halpern. He was a devotee of Chaos Theory, which he called his “religion.’ Life is chaos, he said, and human systems were chaotic. He likened living to a passenger plane’s journey through the endlessly unpredictable air currents and weather phenomenon in the skies. He analogized the plane’s guidance system to a linear constant through chaos, without which, Rich said, the plane would be lost. “No plane follows the charted path the whole trip, because it is constantly knocked off course, but that constant is there for the plane to return to. Ideologies are the same: you have to have that ever-present constant or be lost, with no basis for deciding where to turn, and when you’re navigating through chaos, it really doesn’t matter what it is.

This is why religion is so useful, and all mandated value systems, what Ethics Alarms defines as “morality.” Laws are mandated moral codes, You don’t have to make a million separate decisions, just one: Follow that constant! The constant can be repugnant to others or based on myth and bias, but once someone commits to it, it will do the job. This is where cults come from. This is how Amway became successful. This is why people elevate political and social goals to the point that all of their decisions about who to associate with, what to watch and read and how to align priorities are based on them. Abortion. The environment. “Social justice.”

A new book by Helen Joyce, an Irish journalist who is executive editor for events business of “The Economist,” takes on one of the weirder ideologies that has arisen in recent years, what she calls “gender-identity ideology.” It would be nice if she were a psychiatrist, or a doctor, but then those and most other professional groups in the United States have been so cowed into knee-jerk alliance with the progressive movement that any member of them daring to challenge the cant would face “cancellation.” Her book is titled “Trans: When Ideology Meets Reality.” To be fair, that title could be fairly and accurately adapted to any ideology; remember that neo-conservative icon Irving Kristol (yes, Bill’s dad) famously said that a conservative was “a liberal who has been mugged by reality.” (A cynic is a neo-conservative who was mugged by Iraq.)

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More Ammunition For My College Reunion Note About Why I Will Not Be Attending Next Year…

/ Jack Marshall / 7 Comments

Harvard diploma

I have to get writing soon, since the deadline is October 1. And it is clear that I have more material than I can possibly include to demonstrate why a Harvard diploma for this graduate is now an embarrassment and not to be celebrated. Another example was forwarded to me today.

A reliable blogger and respected lawyer with excellent ethics credentials tweeted that he had spoken with a man who had applied for a job at Harvard for which he was not only well-qualified, but one of the few individuals who was qualified. He had heard nothing for three months, and finally inquired, whereupon he was told via letter that he had been rejected because he did not have the requisite qualifications. By chance, the blogger knew the individual who had signed the letter, and called him up. Off the record, the individual informed him that not only qualified, but the only applicant qualified for the opening. However, he was a white, heterosexual male, and thus was rejected by the hiring committee for not meeting their demographic requirements.

[Note: the tweets did not mention the institution by name, and only alluded to the school’s address, leaving open the possibility that M.I.T., which is just down the street in Cambridge, could also be the school at issue. However. M.I.T. is not currently being sued for discriminatory practices, nor has it defended the same. My own inquiries have persuaded me that Harvard is the culprit here, but the lawyer-blogger did not break his “off the record” promise, though he came close.]

Weekend Ethics Warm-Up, 9/26/2021: Down The Hole As We Vilify The Good Guys To Advance An Agenda

/ Jack Marshall / 9 Comments

Hole

Well, it worked with the false Trayvon Martin and Mike Brown narratives, so why not try it again? I was about to devote a segment here to the hysterical “Border Patrol whipping poor migrants” tale neing manufactured by the administration and the media, but it warrants a full post. I’ll just note the smoking gun huminahumina response from DHS Secretary Mayorkas last week when Peter Doocy of Fox News—gee, why don’t the reporters from other outlets ask administration officials tough questions?—asked him why President Joe Biden accused Border Patrol agents of “strapping migrants.” Doocy asked, “You said on Saturday — or rather, on the 20th, ‘To ensure control of the horse, long reins are used.’ The person who took these photos of the Border Patrol agents says, ‘I’ve never seen them whip anyone.’ So, why is the President out there today talking about people being ‘strapped?'” Hmmm. Because Biden has always been a shameless hack? Because nobody tells him what’s going on? Because creating sympathy for illegals while villifying law enforcement officials for doing their jobs is central to the Left’s open borders agenda? Mayorkas babbled,”So let me, um, uh, let me correct, um, uh, the statements in your question, if I may…” When Doocy (you know, for someone who only has his job because of outrageous nepotism, he has been performing admirably) countered, “They’re direct quotes,” the Secretary of Homeland Security said, “It was on Friday when I was, uh — actually, it was on Monday, I believe, uh, when I was in Del Rio, uh, on the ground, uh, and I made the statements without having seen the images. I saw the images on the flight back, and I made the statement that I did with respect to what those images suggested.The horses have long reins, and, uh, the image in the photograph that we all saw that horrified the nation, raised serious questions about what it— about what occurred and of — as I stated quite clearly — it conjured up images of what has occurred in the past.”

That’s as close to an admission of deliberate obfuscation for political ends as you’re likely to see. What should matter is what was really happening, not what images were conjured up by confirmation bias and or what photos “suggested.”

1. The Great Stupid comes for “Lonesome Dove.” As a lifetime Western movies aficionado, I have concluded that the TV mini-series of Larry McMurtry’s “Lonesome Dove” is the greatest Western ever made. Watching it again yesterday to cheer me up after I woke up with Churchill’s “Black Dog” on my head, I was nauseated to find that the streaming version now carries a warning about “Culturally insensitive portrayals.” After all, the story about cowboys moving a herd to Montana told from their perspective included some dangerous and violent Indians. Of course, for every mean Native American there were about ten cruel and ruthless whites, but somehow I don’t think the trigger warning was referring to them.

2. Speaking of the “Zimmerman murdered innocent teen Trayvon Martin” lie…New York Times drama critic Salamishah Margaret Tillet , the Henry Rutgers Professor of African American Studies and Creative Writing who is essentially an activist uninterested in fair or objective analysis, meaning that her reviews are propaganda, wrote about the re-opened Broadway play “Pass Over” by writing of the playwright,

“Nwandu originally wrote “Pass Over” in response to the killing of Trayvon Martin, seeking to channel the grief and rage that so many African Americans were grappling with. Its latest iteration, she has said, is speaking to the widespread racial justice protests of the summer of 2020. As a result, “Pass Over” is one of the few works of art that really charts Black Lives Matter as a movement responding to the racial justice needs of its day.”

But if the play, which involves a white cop called “master” threatening and menacing them was a response to Martin’s death, it was a response based on media lies and deliberately divisive warping of facts to vilify whites and police. That rage and grief was manufactured for political ends, and the investigation and the trial exploring Martin’s death had to be deliberately ignored for Tillet to write such a paragraph and for the Times to publish it.

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Unethical Quote Of The Month: Miami Beach City Commission Candidate Kristen Rosen Gonzalez

/ Jack Marshall / 13 Comments

“Well, I’m perceived as being Hispanic. I’m perceived as being Hispanic by all of the Hispanics in my community. I’m their girl. My last name is Hispanic. I know I’m not Hispanic… I’m sorry I probably oversold myself. If you want to nail me to the cross, go ahead. Make me look foolish.”

—-Kristen Rosen Gonzalez, a Democrat running for the Miami Beach City Commission, upon being questioned about claiming to be Hispanic when she bears the name “Gonzalez” only because of her marriage to a man with that name, whom she divorced eleven years ago.

Oh, you’re perceived as being Hispanic, so that mean it’s OK to say you are Hispanic! Sure, that’s consistent! It’s like the progressive rule that if you say you are female you are female, and if you say you are black, you’re black!

This may be the ideal template for a 2021 Democratic candidate. She does have a still-active role model of sorts: President Biden’s current climate czar, John Kerry, who early in his political career in Massachusetts used shamrocks on his campaign materials to suggest that he was Irish. There was no Irish in his lineage whatsoever; his paternal grandparents were Jewish. But even Kerry, who is far from the sharpest knife in the cutlery rack, never tried to justify his deception. (He was never called on it either.)

This woman—I assume she really is a woman—referred to herself as “the most high-profile Hispanic Democrat in the City of Miami Beach.”  It was an outright lie. When she was called on it, the best she could do was to justify an intentional misrepresentation by arguing that because her last name fooled people into thinking what wasn’t true was true, it was acceptable to perpetuate the misconception.

Why hasn’t this ridiculous woman withdrawn from the race yet? Why isn’t she hiding her head under a bag? Who finds these people?

The quote above gets worse as it goes along. It’s nice that she knows that she’s not Hispanic—I suppose being a liar is marginally preferable in a commission member than being insane—but she says she’s probably “oversold herself”? She’s falsely convinced all the Hispanics in her community that she’s one of them! What’s “probably” about that? And “oversold” in this case means lied. Nothing else, nothing better. Lied. Then, in a masterpiece of ethics jujitsu and gall, she actually tries to make herself the victim by comparing herself to Jesus Christ!

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Ethics Observations On Scott Adams’ Cat

/ Jack Marshall / 15 Comments

Car relaxing

This issue was brought to my attention by Ann Althouse, who has a weird fascination with Scott Adams, the “Dilbert” cartoonist who emerged in 2016 as a “Trump whisperer,” much to his benefit and infamy. Adams recently tweeted,

cat tweet

This, in turn, prompted the predictable responses from people outraged at how Adams chooses to spend his own money, as well as the puzzled “it’s just a cat” crowd.

Observations:

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Stop Making Me Defend Chris Cuomo! Ethics Dunce: Former ABC Executive Producer Shelley Ross

/ Jack Marshall / 9 Comments

Shelley-Ross-slams-Chris-Cuomo

Time once again to revisit the obnoxious feature of sexual harassment complaints that I tried to enlighten NPR listeners about when I was rudely cut off by my alleged friend, NPR host Michel Martin, who chose anti-Trump bias over what I was there for: to explain what almost no one understands about sexual harassment, including, apparently, Martin. (Yes, I am still furious about this episode, which resulted in my being black-balled from NPR, which I had assisted on short notice for several years. I will keep referencing it until I receive a full apology from Martin, and maybe a gift, which, of course, will happen when NPR starts being non-partisan, or in other words, never.)

My point in the fateful appearance on NPR years ago was that middle-aged (or older) men of power, celebrity and influence are often at risk from a phenomenon that springs from the weird aspect of sexual harassment as both a law and a phenomenon. It isn’t sexual harassment if it is genuinely welcome and appreciated by who would otherwise be the victim. However, neither the law nor the culture considers the situation in which a victim changes his or her mind over time. Thus a young, rich, single, famous young buck impulsively kisses a young woman in his employ, and she is thrilled. Maybe he really likes her! Maybe this is a life-changing event! She is neither offended nor upset, so it isn’t sexual harassment. Then decades pass, and the impulsive kisser is no longer young. Worse, he’s hated by all of the former employee’s friends, and that impulsive kiss all those years ago is no long welcome—except as a way to embarrass and hurt the current version of the rich and powerful man she once admired and even lusted after. She has decided now that she was harassed (or even sexually assaulted) then.

Is that fair? Is that even sexual harassment? As far as I can determine, I am the only commentator, ethicist or lawyer who has raised that question, and my reward for it was to be accused of being a Trump apologist, though my comment was not restricted to accusations against Donald Trump. The related ethical issue is whether it is fair and just for a women who took no action to report an incident that might have been harassment for decades keeps the incident in reserve just in case it might come in useful–to destroy the reputation of the man involved, shake him down, or otherwise harm him while benefiting herself. It’s like a treasure squirreled away to be cashed in on a rainy day.

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If This Post Seems Like Déjà Vu, There’s A Good Reason: The Texas Law Clerk-Prosecutor [Update]

/ Jack Marshall / 8 Comments

Justice scales bad

UPDATE: “I don’t understand how this could happen. Since it obviously can, I wonder how many other outrageous conflicts of interest are rotting the justice system while nobody is paying attention.”

That’s how I started this post when I wrote it yesterday. Here’s how I ended this post, from May 17, just four months ago: “…the fact that something like this could happen at all, and for so many years, should have ethics alarms sounding throughout the justice system, and not only in Texas.”

This is because the two posts are about exactly the same episode. The similarities didn’t ring a bell with me at all yesterday. A new appellate court opinion related to the same outrageous Texas conflict of interest breach came down this month, so I treated the whole episode as new. It took commenter Rich in CT’s note to alert me. (Thanks Rich.) So here are my thoughts while banging my head on my desk:

  • I apologize. It’s not as if there aren’t really new and horrible ethics stories to consider, especially in the law and the justice system. It’s OK if I waste my time, but its inexcusable to waste yours.
  • I like the first post better.
  • Silver lining: at least the posts don’t contradict each other.
  • The association of legal ethicists I belong to scooped the ABA on this one, discussing the prosecutor’s conduct long before the legal press caught up to it. One more reason to renew my membership.
  • I could write that this scandal is so outrageous that it is worthy of two posts, and maybe more. It is, but that doesn’t excuse the fact that I’m an idiot.
  • I think this has happened to me once before. But what do I know?

Once again, I’m sorry.

***

The Texas Court of Criminal Appeals has overturned the 2003 conviction and death sentence of Clinton Lee Young in a Sept. 22 opinion. Why? Oh, just one of those technicalities: on of the prosecutors in the case was moonlighting as a a clerk for the judge in the trial the trial and who considered the the convicted man’s habeas application. That’s all.

WHAT?????

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