Law & Law Enforcement

On The Matter of a Murderer’s Insanity

/ Jack Marshall / 9 Comments

Conservative pundits seem to be having a problem with the fact that Decarlos Dejuan Brown Jr., the homeless man who slaughtered Ukrainian refugee Iryna Zarutska on a Charlotte subway as her fellow riders pretended they were under the sea or something, has been declared incapable of standing trial and prosecutors have delayed his competency hearing by six months.

A horrified conservative writes on PJ Media in part:

“….because soft-on-crime authorities in Charlotte ensured he was always released on cashless bail after his 14 prior arrests, he was free to thrust his knife into a stranger on the subway. Unfortunately, woke medical and legal professionals continue to treat Brown as if he were the victim, a pitiable, crazy man with no responsibility for his actions, rather than as a serial criminal and sadistic killer. The new assessment that Brown is incompetent to stand trial could prevent trying him for the death penalty….”

Ethics Alarms has barely touched on the question of whether not guilty by reason of insanity verdicts (NGBRI) are ethical or even sensible. That’s a big failing, because this is one of the major ethics questions in criminal law, and one that is still unsettled. It may be beyond settling.

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Ethics Quiz: Investigative Reporting Ethics

/ Jack Marshall / 6 Comments

In this article, (Gift Link) a New York Times investigative reporter explains how he has cultivated a source that he knows is distributing illegal drugs that may be fatal.

He writes in part,

“It was a small-time operation, but one that illuminated a big point for our reporting: A single person, without cartel backing, can order and redistribute potent chemicals.

I wanted to verify his account with others. But I also had to make good on my commitment not to reveal his identity. So I compared the information he was giving me with reporting I’d done with dozens of experts and law enforcement officials who told me what they understood about this market. I also spoke to people in his circle of friends and associates.

All along, I was keenly aware that the drugs Chemical Analyst was selling can be fatal. I asked him about this — as I’d asked other dealers and suppliers — and he professed here to be a libertarian. As a human, I find it terrifying the drugs he sells could kill people. It was painful to watch him use drugs himself, and I often feared for his safety. But as a reporter, I have a responsibility to explain to the public what’s really happening on the drug frontier.”

This is different from most Ethics Quizzes here, because my position is set and unshakable. The reporter’s duty “to make good on [his] commitment not to reveal [the drug pusher’s] identity” must be subordinate to his duty to society as a citizen and responsible human being. Even lawyers are authorized to violate a clients’ confidentiality to prevent death or serious bodily injury to a third party. How many people should die so that the reporter can explain what’s happening on “the drug frontier?” My verdict: none.

The reporter says he’s talked to lawyers and other journalists as well as “experts” and law enforcement officials. I doubt that he has talked with any ethicists.

Your Ethics Alarms Ethics Quiz of the Day(that I have already told you my answer to..) is…

Would it be ethical for the reporter sic the police on this criminal? Could it be ethical not to?

The ABA Wants Lawyers To Report Biased Judges

/ Jack Marshall / 1 Comment

Hmmmm. It can’t be that the notoriously woke ABA is concerned about partisan judges legislating from the bench, can it? Naaah, impossible. What was I thinking?

The American Bar Association Standing Committee on Ethics and Professional Responsibility today released a formal ethics opinion regarding the ethical obligations of lawyers who possess information that could lead to a judge’s disqualification. The opinion declares that a lawyer’s role as an officer of the court requires the disclosure of such information to protect the integrity of the judicial process, provided the disclosure does not violate client confidentiality.

Citing ABA Model Rule of Professional Conduct 8.4(d), otherwise known as the “catch-all rule” that some bar associations (like Virginia) regard as too vague to be meaningful, the ABA concludes that because lawyers are prohibited from engaging in conduct that is “prejudicial to the administration of justice,” when a lawyer knows of information reasonably likely to trigger a judge’s disqualification obligation under the Model Code of Judicial Conduct, the lawyer has a duty to speak up. Lawyers typically would rather not do so in such situations, being afraid of making an enemy in black robes.

Examples of such information not meant to be all-inclusive include prior employment connections (a client of mine couldn’t get a judge to recuse despite his having been a partner in the opposing counsel’s law firm), campaign contributions (the judge knowing that your client, or you, contributed to the judicial candidate who ran against her); a spouse’s law firm’s involvement in the case, and a counsel’s business relationship with a judge’s family member.

Here is the link for ABA Opinion 522.

Ethics Quote of the Day: Professor Jonathan Turley

/ Jack Marshall / 1 Comment

“Colorado appears hellbent on maintaining its dubious status as the most anti-free speech state in the union. Citizens will continue to subsidize this effort to defend laws compelling or censoring speech.”

—Prof. Jonathan Turley, in “It’s Our Nature”: Colorado Doubles Down on New Assaults on the First Amendment

Professor Turley, whom conservative pundits like to describe as a “liberal academic” but who exemplifies the red-pilled progressive who suddenly realizes he had been on the wrong side of logic and ethics, has a full-on brief against Colorado up on his blog today.

He chronicles the continuing assault on the First Amendment in the state, which is now typical of the conduct of all the extremist Democratic states as well as the anti-democratic aspirations of the Democratic Party itself. A sample…

“Colorado is now arguably the most anti-free speech state in the union, pushing an array of measures attacking those with opposing social and political views…Now, the Democratic legislature and governor are back with new unconstitutional measures, including a requirement that lawyers not share information with federal immigration officials as a condition for filing with state courts…

In the last election, the state attempted to strip President Donald Trump from the ballot with the support of a majority of its Democratic-controlled state supreme court. (The effort was later declared unconstitutional in a unanimous decision by the Supreme Court. Colorado could not even get any of the liberal justices to support its actions).

The state is responsible for the efforts to force business owners to create products celebrating same-sex marriages. That effort led to the Masterpiece Cake Shop case and then the 303 Creative case. Even after losing earlier efforts against Masterpiece Cake Shop owner Jack Phillips, the targeting of its owner continued for years. That litigation proved to be a tremendous victory for free speech.

Colorado has also been leading the fight to limit the speech and associational rights of professionals and parents on “conversion therapy.” Recently, that effort led to another massive loss before the Supreme Court in Chiles v. Salazar, resulting in a resounding 8-1 rejection of Colorado’s position. It could only secure the vote of Justice Ketanji Brown Jackson.

After that near-unanimous ruling against the state, Colorado responded by doubling down with legislation to expose any counselors engaged in conversion therapy to heightened legal liability, including waiving any statute of limitations. That case could also result in legal challenges as Colorado continues to spend a fortune on seeking to curtail free speech rights.

Now, the state is defending a new public accommodation law, HB 25-1312, that defines “gender expression” to include “chosen name” and “how an individual chooses to be addressed.”

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Update on “Ethics Observations On the Allied Injury Group’s ‘Your Favorite Attorney’ TV Ads”

/ Jack Marshall / 10 Comments

Last year, almost a year ago, I posted this commentary about the Allied Injury Group’s TV ad that embodied all of the horrors the legal profession used for a century to ban lawyer marketing and advertising (thus forgetting about the First Amendment thingy, you know, just like today’s progressives..). In the process, I managed to make an unethical mistake, mislabeling the slimy law firm involved and calling it the Allied Law Group, a non-slimy law firm that was none too pleased. I apologized profusely to the representative of that firm who called to ream me out and made the correction pronto.

The main thrust of the original post was that the ads seemed to present the silly character giving the pitch as a lawyer, and no matter how unlikely that seemed it was a bright line ethics violation as misleading advertising.

This morning I saw the firms’ new add, which dropped at the end of March. That notice, with chase lights running around “not a lawyer,” appeared a few second in.

Good. We ethicists have to take our meager victories, however rare, to maintain our sanity.

“What’s Going On Here?” Saturday Continues: Why Is The President Signing Obviously Unconstitutional Executive Orders?

/ Jack Marshall / 12 Comments

President Donald Trump yesterday signed a second executive order aimed at regulating college sports. It lays out specific transfer and eligibility rules, limits how athletes can be compensated for their name, image and likeness, and threatens schools that violate rules with financial penalties. The EO comes less than a month after the President attended a roundtable of college sports and business leaders convened by the White House collegiate sports-related issue and potential federal legislation.

Yesterday’s executive order is flat-out unconstitutional. It directs the NCAA to create rules that mandate college athletes can play for “no more than a five-year period” and allows them to transfer schools only once before they graduate without having to sit out a season. A school that plays an athlete who doesn’t meet these new limits could risk losing its federal funding. The NCAA is also commanded to update its rules to create a national registry for player agents while establishing policies that prevent schools from cutting scholarships or other opportunities for women’s and Olympic sports in order to pay their athletes.

The rule changes are scheduled to go into effect August 1. Fat chance.

The EO will be challenged in court and can’t possible survive constitutional scrutiny. The theory is that Trump, who has always been a big sports fan, is trying to spur legislative action or push (bully?) the NCAA into making changes he thinks are prudent. But this is none of his business, or any President’s. It is also an abuse of the Executive Order. Is he just trolling? Trying to kill Trump Deranged Americans by making their heads explode?

The “No Kings” nonsense is spectacularly silly, but Trump deciding to act like a king by sending out toothless and illegal edicts is no way to respond to it. The President should use his power, influence, position and “bully pulpit” on matters of state, not matters that reside firmly and undeniably within the discretion of private bodies and organizations, like the NCAA.

The EO on college sports isn’t just obnoxious, stupid, illegal and politically obtuse, but obviously so. Even the President has to know that: he’s remarkably constitutionally obtuse, but he can’t be that ignorant, can he? And he’s surrounded by lawyers: surely all of them can’t be incompetent. Can they?

What’s next? An EO declaring that everyone should wear their underwear on the outside? A declaration that pineapple doesn’t belong on pizzaa? An order that people should stop saying, “No worries?”

Pam Bondi Is Fired: Good! [Quote Fixed]

/ Jack Marshall / 5 Comments

Now, opinions differ regarding President Trump firing Pam Bondi today. The “buzz” is that her botched handling of the Epstein files, saying they were sitting on her desk, then that there weren’t any, then dribbling them out in a manner guaranteed to create conspiracy theories, was the reason. Others, like the Axis news media, claim that she had failed, in Trump’s eyes, to effectively prosecute “the President’s political foes.” Note the emphasis: that framing makes it sound as if these miscreants’ only flaw was opposing Trump. In truth, most of them, maybe all, deserve prosecution. But never mind.

The main point is that Bondi has been fired, and deserved to be fired; indeed, she should never have been appointed or confirmed in the first place. When she was nominated in November of 2024, I wrote in “Breaking: Trump Has A New Attorney General Nominee, and Arguably, She’s Worse Than Matt Gaetz…”:

“Matt Gaetz was an unqualified pick for AG. Pam Bondi is a corrupt one. Out of the ethics frying pan, into the fire. Nice. (I’m sure she’s loyal, though.)”

As it turned out, Bondi was also incompetent. Let’s see: just this past month, we had this and this, plus this embarrassment. And let’s not forget Bondi’s unprofessional behavior in a hearing in February. None of this was a surprise, but I get a Fredo anyway.

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Divisive?

/ Jack Marshall / 10 Comments

The Great Stupid’s warped values have made the term “divisive” particularly problematical regarding societal ethics. If, for example, a sign condemning sex with children is deemed to be divisive to some sick SOBs, my reaction is, “Good. Live with it. You’re wrong and normal people are right. We don’t care if you feel denigrated. You should be denigrated. And shunned.”

Then we have the divisive appeal for funds I highlighted earlier today. I firmly believe that an appeal for charitable assistance for one “tribe” or group to the exclusion of others who have exactly the same claim to charity, empathy, humanitarian aid and generosity is divisive, destructive, and wrong.

Two examples of controversies involving art and messaging also came across my ethics metaphorical radar screen today….

I. The mural honoring murdered refugee Iryna Zarutska in Providence, Rhode Island. The last moments of the innocent young woman slaughtered for no reason in particular by a deranged criminal repeatedly released to prey on an unsuspecting public is on the left, the now condemned mural in her honor is on the right. Mayor Brett Smiley (D, of course) ordered the unfinished mural, largely funded by Elon Musk, taken down. “The murder of the individual depicted in this mural was a devastating tragedy, but the misguided, isolating intent of those funding murals like this across the country is divisive and does not represent Providence,” he said in a statement. “I continue to encourage our community to support local artists whose work brings us closer together rather than further divides us.” Smiley’s Democrat primary challenger, Rhode Island state Rep. David Morales, said, “We’re seeing a right-wing movement that is exploiting the death of the refugee for the purposes of trying to spread division. Ultimately, we want to make sure that every community member that calls Providence home feels safe … and we can both agree that this mural behind us does not reflect Providence’s values.”

That’s interesting. What values do the honoring of a young woman who died because of elected officials, judges and law enforcement officials determination not to punish criminals and wrong doers “not reflect”? The fact that Iryna Zarutska was a Ukranian refugee is irrelevant, isn’t it? A young woman named Ann Jones, or a young man named Bill Shaw, or an old fart named, oh, say, Jack Marshall, being murdered while using public transportation would be equally worthy of public anger, wouldn’t it? Is dividing people who care about law abiding citizens being murdered because of irresponsible policies from those who shrug such horrors off as “collateral damage” a bad thing? What kind of people is Mayor Smiley and David Morales standing up for? Killers? Maniacs? Is the mural divisive because this particular maniac was black and his victim was white? I think the message of the mural is “Shame on you!” to all of the progressives, “restorative justice,” “defund the police” activists whose hands are stained with the blood of victims like Iryna Zarutska. Why should that message be suppressed or discouraged?

In its groveling statement sucking up to the woke and offended by justice, the owners of the building where the mural appeared mewled “We heard you [Providence]. We are deeply and sincerely sorry for everything that has taken place over the past week. After reflecting and learning, we have made the decision to discontinue this project and will move forward with removal as soon as possible. We remain committed to fostering unity, safety, and care for all members of our community, and we will continue to listen, learn, and act with those values at the forefront.”

Sure, you foster safety by supporting the removal of a strong statement against pandering to criminals. Got it. You’re disgusting.

[Pointer: JutGory]

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Ethics Verdict: It Is Unethical For President Trump To Attend The SCOTUS Oral Argument On Birthright Citizenship

/ Jack Marshall / 40 Comments

As I write this, the Supreme Court is hearing a case challenging the tradition that nearly all children born in the United States, whoever their parents may be and how they came to be here, are automatically citizens.

On the first day of his second term, President Trump signed an executive order stating that babies born on U.S. soil to illegal immigrants and temporary foreign visitors were ineligible for birthright citizenship. That was an obvious shot across the bow of the U.S. Supreme Court as it challenged an interpretation of the 14th Amendment that has stood for over a century. The President knew his EO would be also challenged, and would eventually end up on the Supreme Court docket.

Because this is an important question that would, if SCOTUS agreed with the President’s interpretation of the Constitutional intent (there were no such things as “illegal immigrants” when the Constitution was written) have massive consequences in many areas, the oral argument is attracting blow-by-blow analysis. That is not my purpose here.

The issue for Ethics Alarms is President Trump’s decision to attend the oral argument. No previous President has done this, although nothing prevents the President from attending. Trump’s predecessors all avoided the option, though there have been many, many cases over the years that the President knew would have a major effect on his policies as well and the matters he had to deal with. President Pierce did not attend the Dred Scott oral arguments. To be fair, he was barely engaged at any time in his miserable four years in the White House. But FDR didn’t sit in while the Court was determining the fates of his many New Deal programs. Nixon didn’t listen to the Pentagon Papers arguments.

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Oh Look: The ABA Wants To Circumvent The Second Amendment (Again)…

/ Jack Marshall / 3 Comments

As a lawyer who has scrupulously avoided joining the American Bar Association (except when a discounted membership allowed me to feel more comfortable when the ABA invited me to speak about ethics at a convention), I found the recent resolution calling for the repeal the Protection of Lawful Commerce in Arms Act, (“PLCAA”), 15 U.S.C. §§ 7901–7903, consistent with what I now expect of the nation’s largest legal trade association. Over the last several decades years, the ABA has moved steadily leftward on the ideological spectrum, and signs that bias had made it stupid began turning up as early as 1987, when four members of the association’s special committee evaluating Supreme Court nominees found the extremely well-qualified Robert Bork, nominated by President Ronald Reagan, unqualified purely because of his conservative judicial philosophy. This gave Senate Democrats the ammunition they need to reject Bork, thus beginning the destruction of a crucial “democratic norm” that Presidents should be able to choose SCOTUS justices as long as they were sufficiently qualified and experienced.

You can read Resolution 604 here. Ten states (New York, California, Connecticut, Colorado, Delaware, Hawaii, Illinois, Maryland, New Jersey, and Washington…do you see a pattern?) have enacted “Firearm Industry Responsibility Acts,” and the ABA, being properly woke, is calling for a national version. The resolution purports to be concerned about a “small percentage” of “irresponsible” gun manufacturers who violate consumer protection or engage in deceptive trade practices, and wants the gun industry’s unique immunity from product liability lawsuits to be narrowed and reformed.

Because the latest resolution begins its arguments with the usual scaremongering statistics compiled by anti-Second Amendment activists—“Approximately 46,000 Americans are killed by a gun every year—approximately 125 people every day,” I find the resolution to be disingenuous, a “camel’s nose in the tent” tactic to make gun manufacturers so vulnerable to lawsuits that the business becomes untenable, and guns become so expensive that the right to bear arms is illusory.

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