Law & Law Enforcement

Oh Great: Another Car Has Been Added To The Karmelo Anthony Ethics Train Wreck

/ Jack Marshall / 6 Comments

Ethics Alarms first mentioned the Karmelo Anthony case a year ago in the context of how completely screwed up woke Minnesota has become. Anthony, a teen who allegedly stabbed an unarmed white student to death at a school track meet, is the beneficiary of a GoFundMe effort that raised a large sum of money. Many conservative pundits wrote that this was a black backlash against a racist white woman who had attracted large donations to support her when a black man posted a video on social media that caught her in the act of calling him a “nigger.” I wrote in part,

“Anthony, who is black, is accused of stabbing 17-year-old Austin Metcalf, who was white, to death during a rain delay at their high school track meet. Anthony has not faced trial yet and claims that he in innocent by reason of self-defense. The online fundraising campaign on his behalf has raised over a half-million dollars. The clear difference between that and [the racist white woman’s] ill-gotten booty: Anthony hasn’t been found guilty of anything yet, and raising money for his defense is not, as some are claiming, the same as rewarding him for murdering a white kid. The accused teen’s family is the object of this fundraising campaign, and it is not inherently endorsing a black kid murdering a white kid to show sympathy for his family with a contribution.”

This ethics train wreck is still running. Anthony’s trial is finally getting started, and, naturally, the usual race-hustlers and victim-mongers are already claiming that the young man is another victim of racism by evil whites. Protesters were out in front of the courthouse chanting “Self-defense is not a crime!” They have no idea whether Karmelo has a legitimate self-defense case, but he’s black, so that’s all they need to know that he’s being framed by the racist justice system.

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On Capital Punishment Porn From The New York Times

/ Jack Marshall / 10 Comments

“For 90 Minutes, I Watched an Execution Go Horribly Awry” [Gift link!]is an unethical opinion piece. It is manipulative and an appeal to emotion, while pretending to make a persuasive argument against capital punishment using deflection and misdirection, tying three separate ethics issues together as one. The author’s methodology is to argue that killing someone can be icky. So?

The author is a criminal defense lawyer, so you might think I should cut her some slack. I won’t. It is acceptable for a lawyer to use trickery, logical fallacies and rhetorical cheats to convince a jury, because that is what defense lawyers have to do to zealously represent their clients. A newspaper’s readers, however, are not jurors. A publisher and paper’s editors should maintain journalistic standards, which demand truthful communication that is not calculated to deceive or confuse. The New York Times, however, is not an ethical newspaper, and is interested in advancing agendas, not fair and responsible punditry. Even the headline is deceitful. Her client’s execution by lethal injection was botched, but he survived. His execution was delayed for a year by the governor. She doesn’t reveal that little detail until the next to last paragraph. Surprise! The execution attempt went ‘horrible awry,” but there was no execution.

Author Maria DeLiberato is a mission lawyer, meaning that she takes cases to accomplish a personal objective, in her case, opposing the death penalty. She begins by telling us that she believes Tony Carruthers, her condemned client, was wrongly convicted. That issue is 100% irrelevant to the focus of her article, which is that executions in Tennessee (and presumably elsewhere) are often botched and excruciatingly painful as a result, making them “cruel and unusual punishment,” an 8th Amendment violation. She argues that Carruthers was innocent, which is a different ethical issue entirely. A botched execution is exactly as painful and torturous whether the condemned is guilty or not. Like a good lawyer (but an unethical writer) DeLiberato pre-sets the dial to sympathy and indignation by framing Carruthers’ ordeal as an unjust one. But even a perfect, quick and painless execution of an innocent individual is wrong beyond redemption: it doesn’t become more wrong because the killing takes longer.

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“Swinging Dick” Ethics

/ Jack Marshall / 12 Comments

In a case involving a spa for women that refused ​service to a transgender woman, Circuit Judge Lawrence VanDyke’s dissented from ‌the full court’s decision not to review the spa’s claims that a Washington state anti-discrimination law violated its constitutional rights. (You know, Washington state. It was discrimination not to allow a biological male who had decided he was now female to join and all-female spa and undress in a women’s locker room.) VanDyke’s dissent begins, “This is a case about swinging dicks.”

“You may think that swinging dicks shouldn’t appear in a judicial opinion,” the judge continued. “I hope we all can agree that it is far more ​jarring for the unsuspecting and exposed women at Olympus Spa — some as young as 13 — to be visually assaulted by the real thing.”

Twenty-seven judges denounced VanDyke’s comments as “vulgar barroom talk” that could undermine public trust in the ⁠courts, including my old Georgetown Law Center classmate, Circuit Judge M. Margaret McKeown, who wrote separately that VanDyke’s “crass” language served only to distract from what she said was a routine case involving discrimination in public accommodations.

“It is certainly not a case involving ‘woke regulators’ and ‘complicit judges’ out ​to harm ‘women and young girls,'” she wrote.”Those assertions describe a case entirely different from the one presented to the panel.”

I hate to disagree with my distinguished classmate, especially since she’s judge and I’m just a…hell, I don’t know what I am. But the case was indeed about “swinging dicks.” Here’s the first paragraph of the decision:

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The ABA Issues An Ethics Opinion To Help Lawyers, Not Clients

/ Jack Marshall / 3 Comments

 The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 523 titled “Engagement Agreements Allowing a Lawyer to Withdraw When the Client Fails Substantially to Fulfill an Obligation Regarding the Lawyer’s Services.” 

The opinion’s summary:

“Rule 1.16(b)(5) of the ABA Model Rules of Professional Conduct permits a lawyer to withdraw from a representation, or to seek the tribunal’s permission to do so, when “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.” This provision is ordinarily invoked when a client fails to fulfill an obligation regarding payment of legal fees and expenses. The engagement agreement may memorialize additional obligations of the client, both obligations that are otherwise implicit such as the client’s truthful cooperation with the representation, and further obligations insofar as they are not forbidden by the Rules, other law (including court rules), or public policy. A client’s persistent failure to fulfill obligations regarding the lawyer’s services, including obligations unrelated to payment of fees and expenses, may constitute a basis for withdrawal if the procedural requirements of Rule 1.16(b)(5) are met. Further, the lawyer’s engagement agreement may put the client on notice of permissible grounds for withdrawal under Rule 1.16(a) and (b), including the client’s failure to fulfill obligations regarding the lawyer’s services. However, the engagement agreement may not expand on the grounds for withdrawal set forth in Rule 1.16 or purport to alter or amend the grounds for withdrawal or the process for withdrawal required by the Rule.”

The ABA is being coy. Traditionally, because, you know, we lawyers are professionals and are not in it for the money but rather for the good of society, lawyers aren’t automatically allowed to drop deadbeat clients because they have stopped paying. It is not unusual for a judge to refuse to allow an attorney to withdraw for that reason, and there is another Catch 22: the confidentiality rules in most states forbid a lawyer from telling a judge that a client isn’t paying his or her legal bills, or can’t.

One coded message that some jurisdictions wink at is “Your honor, I request to withdraw because Mr. Green is unavailable at this time.” Of course, coded violations of confidentiality are still violations. Now the American Bar Association is saying that “the client’s failure to fulfill obligations regarding the lawyer’s services” makes dropping that client reasonable and ethical. This is supposed to be a profession. But for most lawyers out there, it’s all about the money.

The ABA’s pronouncements aren’t binding on anyone, remember.

The full opinion here. 

No, John Brown Is NOT a Role Model For “Social Justice Reformers,” and Anyone Who Says So —Like Hakeem Jeffries’s Brother—Is Both Unethical and Dangerous

/ Jack Marshall / 13 Comments

I co-wrote a book about Clarence Darrow (you can buy it here: it’s cheap), and one of the points I made in the Introduction was that the U.S.’s most famous trial lawyer also believed in terrorism. Well, Darrow had his quirks, and he frequently argued that one of his murderer clients should be acquitted because the murder was justified (it worked, too!). He was ethically and morally wrong about Brown, as I asserted here in a post that republished a shortened version of Darrow’s famous eulogy for the anti-slavery vigilante. It was written long after Brown’s death, of course; Darrow used to deliver the speech on anniversaries of Brown’s birthday on May 8. The most famous section of Darrow’s passionate speech:

“The radical of today is the conservative of tomorrow, and other martyrs take up the work through other nights, and the dumb and stupid world plants its weary feet upon the slippery sand, soaked by their blood, and the world moves on.”

Darrow was an early progressive when the movement began, on the extreme end. In his “ends justifies the means” glorification of violence as a means of social change, we can see the seeds of where modern progressives have gone off the metaphorical rails and become a genuine threat to the rule of law and democracy. In Darrow’s time (he was active from 1890 to 1932) there were few progressives who would go as far as Darrow, though the anarchists did. They were the terrorists of the day, but Darrow defended labor leaders who also believed that murdering the exploitive capitalist here and there as well as their political enablers was the right thing to do.

Thus Darrow defended “Big Bill” Haywood (February 4, 1869 – May 18, 1928), an American labor organizer, a founding member and leader of the Industrial Workers of the World (IWW) and a member of the executive committee of the Socialist Party of America. “Big Bill” was indicted for engineering the booby-trap murder of Frank Steunenberg, a former governor of Idaho. Darrow got “Big Bill” off (Just look at this guy! You just know he did it.)…

….but by arguing that even if he was guilty, its shouldn’t matter because he was on the right side. Fortunately, Darrow’s arguments in favor of just murder were confined to the courtroom and his John Brown eulogy once a year.

This week, Hasan Kwame Jeffries , an Ohio State University history professor and the brother of House Minority Leader Hakeem Jeffries, declared in a social media post that “John Brown understood that the only way to free Americans from the scourge of white supremacy was to get rid of white supremacists by any means necessary. He was right then. He is right now.” Gee, do you think Prof. Jeffries is at odds with his brother in this appeal to violence? I doubt it.

Prof. Turley has called out the Democratic House minority leader for encouraging violence on the Left, and lionizing John Brown is literally a justification of violence. If Republicans and the news media don’t confront Democrats and the party’s leaders with Prof. Jeffries’s words, they are being negligent and irresponsible.

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On Trying To See Both Sides Of The Illegal Immigration Issue…

/ Jack Marshall / 11 Comments
A Guest Post by Ryan Harkins

[This guest post’s origin was the most recent Open Forum. Personally, I don’t believe there is a rational, ethical, realistic “other side” to the issue. As I wrote in a longer response to Ryan that you can read here, “the issue of illegal immigration is quite simple. It’s against the law. It’s against the law because open borders to a country like the US is literally national suicide…The immigration laws we have, flawed or not, have to be enforced uniformly and strictly.”—JM]

My wife and I have been debating the illegal immigration issue on and off for a while now, and part of the reason we keep returning to ethics of the illegal immigration issue is the fact that so many in leadership in the Catholic Church have been very critical of Trump’s deportation efforts.  As faithful Catholics, we believe we need to listen when our bishops speak.  It doesn’t mean we mindlessly agree, but in cases where the bishops take a position we initially oppose, it is incumbent upon us to study and ponder the issue as thoroughly as we can before making any objections.  

To that end, my wife and I are trying to be as open as we possibly can regarding the issue of how to manage people who are in our country and in our local communities illegally.  I have told her that I think the best way to understand a viewpoint with which we disagree is to argue from that viewpoint and to steelman its arguments as best we can.  Interestingly enough, my wife and I do highlight differing aspects of why we have problems with illegal immigration.  I focus very heavily on the human trafficking issue.  She focuses very heavily on the financial injustices the illegal immigration causes. 

From the trafficking standpoint, I think that is it clear that a lot of illegal immigrants end up practically as slave labor, which has largely been overlooked because it seems like it keeps prices down in the supermarket.  But far more devastating is the sex trafficking which never seems to get the attention it deserves, especially when so many of these “lost and displaced children” end up serving the debauched desires of affluent Americans who believe they can continue their predations because “Who would dare contact the authorities?”. 

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I Wonder 1) What Will Be Done About This…Because Obviously It Cannot Stand, and 2) Whether I Should Wear A Bag Over My Head From Now On

/ Jack Marshall / 35 Comments

The nine-page settlement agreement of President Trump’s unwinnable lawsuit against the I.R.S,, which already included an illegal tax-free provision, had that one-page coda. I wrote about it yesterday, but this is sinking in.

I feel like an idiot. Since 2016, I have tried hard to be fair to Donald Trump, to give him the presumption of good will and legitimacy all Presidents deserve, and indeed must have to function. I am certain that the attitudes of the Trump Deranged have been destructive, undemocratic, biased and irrational, but this latest development raises the strong possibility that they happened to be right.

A Democratic, progressive criminal defense attorney who believes, with so may of my friends and colleagues, that the President “Trump “has two, and only two, motivations: Self-aggrandizement and self-enrichment. He’s done nothing in his second term to suggest otherwise”—a starting point that I still believe is biased and based substantially on hate—writes today in part,

“Can Trump do this? Is any of this lawful and constitutional?….[T]his post hoc addendum to a “settlement agreement” that elevates the concept of collusion to its apex breaks ground never before molested. The idea of any past President doing something so audacious, so self-serving, so blatant, seems incredible. The public would never accept it. Perhaps the public still won’t, even if the MAGA faithful will. That remains to be seen, subject to the likelihood of the Democratic Party doing something to self-destruct and remind Americans why they elected Trump a second time despite knowing who he was. There is no ready answer as to what can be done about this…We are deep into virgin territory of graft, corruption and self-dealing, with little expectation of any governmental guardrail holding fast…And much as it’s hard to fathom what he could do that’s worse than this, it would be stunningly naive to believe that we’ve hit rock bottom.”

The rest of Scott Greenfield’s commentary is, as usual, marred by the typical hyperbole of a true-blue progressive and Trump hater, but in those words above I find nothing that I can reject. I regard the episode a betrayal of trust by everyone involved, especially the President, reckless, beyond rational defending, destructive to the nation, and politically stupid.

Now what?

More on the President’s Unethical and Collusive $1.8 Billion IRS ‘Slush Fund’ Settlement 

/ Jack Marshall / 6 Comments

Or in other words,

If you can process this whole astounding ethics debacle and come out anything but but disgusted and disillusioned, you apparently are capable of rationalizing anything.

Hint: This is not a good thing.

In this post, I wrote about the gob-smacking, unprecedented settlement of President Donald Trump’s lawsuit over the leaking of his tax returns. My conclusion yesterday: “[T]his deal stinks, and should be challenged ethically if not legally. The whole Justice Department and the Treasury Department too had irresolvable conflicts, and should not have been allowed to make a settlement with their own boss.”

I learned of this revolting development two days ago, when a Trump Deranged relative asked me why my ethicist head wasn’t exploding over “Trump’s corrupt deal with the IRS that gave him a billion dollars to pay his militia, the J-6 rioters.” I had no idea what she was talking about. See, she only watches MSNow for news, and of course they were all over the story, as were all the Axis news platforms. The last few days I have been less than diligent in my bi-partisan news searches, mostly checking websites. However, that potentially exaggerated description of what two Executive cabinet departments and their employees who Trump can fire at will agreed to in settlement of a lawsuit that almost certainly would have been tossed by any judge who could beat Justice Jackson in Scrabble turned out to be shockingly accurate.

Now we are learning that the deal is even worse than it first appeared to be. This account is straight from Politico. I will not make a habit of the lazy Instapundit-Althouse blogging practice of posting a long quote or article and asking readers, “What do you think?”, but the ethics horror here is pretty straightforward, and I would just be rewording the item unnecessarily:

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So NOW the Climate Change-Hyping “Experts” Admit That Their Fear-Mongering Models Were Garbage!

/ Jack Marshall / 1 Comment
GUEST POST BY RYAN HARKINS

[From your host: I know the headline and graphic is my style and not Ryan’s. The valuable commentary below came out of a thread on the last Open Forum. I decided that it was worthy of a stand-alone guest post, especially since I should have written pretty much the same post when this news was first reported. Also, with this post I am officially Christening “The Climate Change Hysteria Ethics Train Wreck.” I should have done it years ago. JM]

I’m seeing some news that the IPCC (the International Panel on Climate Change) has rejected the RCP8.5 model as pretty much an impossible scenario. What is significant about this is how much research and how many policies were based on this scenario. With the IPCC actually stating that RCP8.5 is simply not plausible, the foundation for so much of the climate change hysteria has been ripped away.

To provide a little more detail, RCP8.5 is one of thousands of different models (computer simulations) trying to predict the impact of human activity on climate change up to the year 2100. These models try to take into account factors like human population growth, adoption or rolling back of climate policies, differing degrees of climate forcing due to carbon dioxide (because the science is definitely NOT settled on how much forcing CO2 actually contributes), and a host of other factors. RCP8.5 has always been one of the most extreme models, predicting an increase of 8.5 W/m^2 by 2100. There are scores of other models that are far more modest in their projections, and certainly observed data has favored models that project something closer to 3.4 W/m^2, though even those are diverging from observed data as time goes on.

The upshot, though, is the sheer scope of how much of the world’s climate policies are based on RCP8.5. From this article, we have

“Why this matters: these scenarios live in policy. The now-implausible upper-end scenarios — RCP8.5, SSP5-8.5, and SSP3-7.0 — are not just academic constructs used in esoteric research. They are embedded in the policies and regulations of most of the world’s largest economies, found across the world’s most important multilateral institutions, and used in the climate stress tests that govern hundreds of billions of dollars in bank capital. National climate impact assessments in the United States, United Kingdom, Germany, Canada, Australia, Japan, and the Netherlands all use RCP8.5 or SSP5-8.5 as a reference scenario. The Network for Greening the Financial System framework, used by more than 140 central banks, has utilized a “Hot House World” scenario calibrated to RCP8.5 physical risk into the bank stress tests run by the European Central Bank, the Bank of England, the Reserve Bank of New Zealand, the Banque de France, and the US Federal Reserve. The World Bank’s Climate Change Knowledge Portal, which provides the climate diagnostics that feed into the Country Climate and Development Reports for more than 100 client countries, defaults to SSP5-8.5 and SSP3-7.0.”

We have trillions of dollars worldwide tied into climate policies. Europe is practically destroying itself trying to achieve Net Zero targets. Industries are dying, people are facing energy insecurity, prices are skyrocketing, and the entire continent is growing in unrest over the devastation to livelihoods. All this comes from countries making policies based on a model that people have warned for years is unrealistic. But the good news is at least with the IPCC ruling the scenario implausible, there is no defense for anyone to keep using those high-end scenarios to craft policy.

Sadly, I’ll bet few policies are actually updated to reflect this ruling.

An Unpleasant Reminder Of Why Ethics Alarms Holds That Editorial Cartoons Are Unethical (and Outdated) [Revised]

/ Jack Marshall / 18 Comments

This:

[The revision referred to in the headline is that I changed the phrase “political cartoon” to “editorial cartoon” throughout the essay. My fault: that was what I meant and still mean when I use the term “political cartoon.” Obviously that confused people: I apologize. “Doonsberry” is a political cartoon; so were “Pogo” and “Li’l Abner.” They were cartoons about politics, and their primary purpose was to amuse. Editorial cartoons, like the one above, are supposed to be treated seriously, like editorials. That’s what this post is condemning. I’m an idiot for not realizaing I was confusing the issue.]

As I wrote in 2017, it’s time, long past time, really, for editorial cartoons to be sent to the ash heap of history.

To clear up any confusion: I’m not a huge fan of memes, but I’m warming up to them a little because they are unequivocally graphic jokes, intended to be outrageous, satirical, maybe offensive but always funny. Editorial cartoons evolved as artistic punditry; they might use humor, but their ultimate goal was to make serious, trenchant, ideally witty observations on the political scene while appearing in newspaper editorial pages.

With very, very, very few exceptions, editorial cartoonists are artists who are partisan one-trick ponies.They are neither as smart or as analytical as they think they are. The template for these would be Herb Block, the mysteriously acclaimed Washington Post editorial cartoonist, who thought he was being clever by always drawing businessmen with huge bellies and smoking long cigars, or making Richard Nixon look like an axe-murderer.

That shameless cartoon above was posted with approval by an old friend of mine, a history professor at an elite college. To say that I was disappointed would be an understatement. How many things are wrong with that thing? The mind boggles. The juxtaposition of the flag-raising over Iwo Jima and the majority opinion in Louisiana v. Callais makes no sense. The implication that the long-needed judicial holding that a 60 year old law crafted to deal with conditions in the Southern states in 1965 no longer is relevant to those states in the 21st century is somehow pushing the nation back 160 years is temporally, historically, factually and legally gibberish. True, it is a pictorial equivalent of the Democrat’s House leader’s meltdown, as the ridiculous Hakeem Jeffries ranted, “Because we know this unprecedented assault on black political representation, the likes of which we have not seen since the Jim Crow era, the ghost of the Confederacy has afflicted the United States Supreme Court majority and is invading and haunting the nation right now! ” That, however was, or should be, an embarrassment to all Democrats and black Americans with a 6th grade education.

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