Law & Law Enforcement

In Texas, A Court Puts Some Teeth In A Much Abused Legal Ethics Rule

/ Jack Marshall / 1 Comment

Tiger

The American Bar Association’s Rule 3.6, Trial Publicity, states in part, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Although the rule is long-standing and included more or less identically in all state legal ethics rules, it is honored more in the breach than with compliance. One has to look no further than the justice-tainting comments by lawyers and prosecutors in such cases as the deaths of George Floyd, Freddie Gray, and Trayvon Martin, but lawyers shooting off their mouths on TV, social media or in the press is common in many other kinds of litigation. Often they are violating not just Rule 3.6, but 8.4 (Misconduct) as well. Among other things, that rule prohibits lying.

Thus the Texas Supreme Court ruling last week was welcome news. The court held that lawyer statements about a client’s allegations in press releases and social media are not protected by the judicial proceedings privilege or attorney immunity. The judicial proceedings privilege protects statements made in open court, depositions, affidavits and other court papers. Attorney immunity protects lawyers from liability to non-clients when lawyers act on behalf of their clients in a “uniquely lawyerly capacity.” That means when they are clearly and appropriately speaking on behalf of their clients, in their roles as advocates.

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Post George Floyd Anniversary Observations: A False Narrative Kneels On America’s Neck

/ Jack Marshall / 23 Comments

Floyd white house

I’m sure many readers here feel that I am obsessed with this issue and are tired of my attempts to cut through the fog machine’s belches, but this is an ethics blog—a tiny, increasingly ignored ethics blog that is opposing the full force of a lying news media, a cynical Democratic Party, Machiavellian activists and dead-eyed corporate executives who just want to avoid controversy, and everywhere else, “Good Germans,” cowards who know the George Floyd Freakout narrative is based on falsehoods, but who just want to get along by going along.

So if I have to be a bit repetitious, so be it. There have to be a few oases of truth on the web.

Here are some excerpts from this morning front page story in the Times, insufferably headlined “The First Time The World Stopped And Noticed.” (Noticed what? That a drugged-out career criminal died on the streets as a direct result of his own persistent irresponsible behavior? That Minneapolis had a sadistic, mean cop who should have been kicked out of policing long ago? That a single, perhaps avoidable tragedy occurred in a city as the end result of a confluence of unrelated circumstances, the type of event that happens, has happened and will happen thousands of times every day across the country?)

  • “The crowds that gathered in Minneapolis and elsewhere reflected on what has changed, and what has not, in America since Mr. Floyd was murdered by a police officer.” The Times should know better, and I’m sure it does, but just doesn’t care. Until Derek Chauvin’s appeals are exhausted and he loses them—not at all a foregone conclusion—it is not factual to say he “murdered” George Floyd. On the facts, I still don’t see how it can be claimed that he murdered Floyd, since murder requires the element of intent. At most, the episode was negligent homicide, which is not “murder.” But referring to Floyd’s death as a murder became part of the false narrative from the second cell phone photos of the incident hit the internet, and it has hardened into “fact” in the minds of most Americans.
  • “Mr. Floyd’s daughter Gianna was invited to appear at an Atlanta rally titled, “My Daddy Changed the World.” Her Daddy changed nothing. He broke a law, resisted arrest, took drugs that might have killed him, and then had the manner of his death exploited, resulting in many deaths, billions in damage to communities, and mass disinformation.
  • “The battle for the soul of America,” [President Biden] continued, “has been a constant push and pull between the American ideal that we’re all created equal and the harsh reality that racism has long torn us apart.” This is shameless grandstanding for the rubes. All evidence indicates that Derek Chauvin was an equal opportunity bully. Nobody has been able to show he was a racist. Once again, this is the propaganda of presumed racism. If Chauvin were black and Floyd were white, and every other detail was identical to what happened in Minneapolis a year ago, nobody outside of Floyd’s family and friends would know his name. The incident had nothing to teach abut racism, except that it is a powerful and abused word currently being abused by demagogues and power-seekers.
  • “Speaking after the meeting, one of Mr. Floyd’s brothers, Philonise Floyd, pushed for more action on Capitol Hill. ‘If you can make federal laws to protect the bird which is the bald eagle, then you can make federal laws to protect people of color,’ he said.” Such an idiotic and offensive analogy is not worthy of publication, except to show how emotion rather than reason has dominated the entire fiasco. “People of color” are not an endangered species, and the greatest threat to their welfare is their own conduct, as in the case of George Floyd. Nobody is hunting them, but the paranoia that statement like this creates does lead to the dangerous tendency among blacks to resist lawful police authority.
  • “In New York, demonstrators said that the killing of Mr. Floyd had energized the Black Lives Matter movement that began after the death of Trayvon Martin in 2012, but that the country still had a long way to go.” Now there’s a good analogy: Trayvon Martin’s death also had nothing to do with racism, his killer was portrayed as a racist murderer of an innocent, politicians deliberately misrepresented the facts, and politically motivated prosecutors brought excessive charges. In that case, justice prevailed, however.

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Greer’s Ranch Cafe Et Al. v. The United States Small Business Administration: No Government Discrimination Based On Race Or Gender Means No Government Discrimination Based On Race Or Gender

/ Jack Marshall / 12 Comments

OK to be white

When the government says that it isn’t OK to be white (or male), that’s not just unfair, it’s unconstitutional. Why is this so hard to grasp? Why is it controversial?

Texas federal district court Judge Reed O’Connor ruled last week that the Biden Administration was engaged in racial and gender discrimination in the administration of pandemic relief funds under the American Rescue Plan Act. NO! The BIDEN ADMINISTRATION handing out special benefits to women and blacks to the disadvantage of whites based on no other distinctions but race and gender? Impossible! Completely out of character!

Thanks, I had a huge sarcasm lump in my gorge that showed up on my last X-ray as a horseshoe crab. Whew! Finally got that thing out!

Judge O’Connor found that the Biden administration deliberately engaged in systemic gender and race discrimination in implementing Wuhan virus relief for American restaurants. Café owner Philip Greer sued the Small Business Administration arguing that he needs the same financial assistance as minority restauranteurs under the newly enacted American Rescue Plan Act, since his Greer’s Ranch Café lost over $100,000 during the pandemic. But Greer learned that he could not receive benefits from the Restaurant Restoration Fund approved by Congress because he is the “wrong” gender and the “wrong” color.

The White House and the Democratic-controlled Congress want women, minorities and “socially and economically disadvantaged” people” to be first in line. $2.7 billion already has been distributed through the fund and there are almost 150,000 pending applications from owners who will get preferential treatment over Greer. The SBA confirms it already has requests for $65 billion in payments under the fund. Greer worries that he might not get any assistance at all….because he is white. And—yecchh!—male.

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Ethics Dunce: University of Illinois Chicago John Marshall Law School

/ Jack Marshall / 4 Comments

Marshall

You knew I couldn’t let this one pass.

The UIC John Marshall Law School is officially changing its name to the University of Illinois Chicago School of Law. The decision, a capitulation to the unethical mentality of the cancel culture and historical air-brushing strategy embraced by the political Left, comes after months of review by a task force. The resulting report noted, “that despite Chief Justice Marshall’s legacy as one of the nation’s most significant U.S. Supreme Court justices, the newly discovered research regarding his role as a slave trader, slave owner of hundreds of slaves, pro-slavery jurisprudence, and racist views render him a highly inappropriate namesake for the Law School.”

The most influential and important jurist in U.S, history is a highly inappropriate namesake for a law school. Got it.

John Marshall was the fourth chief justice of the Supreme Court, (1801 – 1835), and the only essential one. He authored the majority opinion in Marbury v. Madison (1803) that established judicial review, giving the Court power to declare legislative acts and executive actions unconstitutional. Without Marshall, the Constitution wouldn’t work. He took a bold and controversial step to ensure that basic rights and principles would not be wiped out by a rogue Congress or a dictatorial President. How many landmark SCOTUS decisions does the nation owe to Marshall as a result? How different would our lives be without his deft adjustment to the balance of the Branches? Would the United States of America even exist at all?

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Ethics Miscreants In Yet Another Police-Involved Death Ethics Train Wreck

/ Jack Marshall / 13 Comments

Ronald Greene

Another death of a black man in an encounter with the police has re-emerged from 2019, this time from Louisiana. It has even more of the unethical elements of past tragedies/botches/fiascos than usual, and the cast of characters are all playing their now familiar parts to maximize the likelihood of protests, riots, political grandstanding and confusion, not to mention more deaths and further damage to race relation and law enforcement. Good job, everyone!

This is a true ethics train wreck, because nobody, literally nobody, who has been involved with the episode so far has behaved ethically. At this point, I see no hope that the mess can be cleaned up, but maybe we can learn something from how thoroughly another Police Meet Black Lawbreaker disaster has been mishandled by everyone to ensure the worst conceivable outcome. In no particular order, here is a list of those responsible for the Ronald Greene Ethics Train Wreck.

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Morning Ethics Warm-Up, 5/21/2021, To A Chorus Of Cicadas

/ Jack Marshall / 11 Comments

Cicada Ethics: Sweep up all the disgusting things (and their husks) that have accumulated on your front walk at least twice a day so people don’t have to walk on them and their dogs don’t eat them.

1. Charles Grodin (1935-2021): Thanks a lot! Charles Grodin was a talented and versatile actor who was extremely good at playing dislikable characters. We can blame him (not Jon Stewart) for creating the unfortunate cultural phenomenon of the allegedly funny TV talk show host who decides he is qualified to bombard viewers with partisan rants. It’s a self-indulgent abuse of power, position and trust, but it’s also now the norm, with every late night talk show host (and Staurday Night Live) but the generally sweet James Cordon using their show as a platform to bash Republicans and conservatives and extoll progressives no matter how mockworthy they are. Grodin started the bait-and-switch (He’s funny! Wait, why is he so angry and preaching at us?) in the mid-Nineties, and though it eventually killed his show (not soon enough), the template was born.

Grodin made Ethics Alarms in 2014, with his campaign against the felony murder rule.

2. Speaking of staying in one’s lane…Yet another ugly result of social media is the phenomenon of people publishing uninformed opinions that they are unqualified to be so emphatic about. A baseball writer and recovering lawyer, Craig Calcaterra, whom I have referenced here before, has migrated from NBC Sports to substack, and is asking me to subscribe to his newsletter. Craig is funny and smart, and his baseball analysis is superior to most. But he is addicted to making political pronouncements, and while he has a right to his biased and often ignorant opinions on things he’s far from an expert on, I’ll be damned if I’ll pay to read them. For essentially the same reasons I object to watching football players “take a knee” during the National Anthem, I expect sports writers to stick to sports. Here’s a tip to anyone peddling a newsletter to me: I regard referring to the January 6 Capitol riot as a “deadly insurrection” as Democratic Party propagandist and signature significance for a pundit who is not concerned with facts.

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Morning Ethics Warm-Up, 5/20/21: Happy Birthday, John Stuart Mill!

/ Jack Marshall / 21 Comments

Mill

John Stuart Mill (1806–73), was born on May 20, not merely the most important figure in ethics to have a connection to this day, but also the most important human being born on this day in the history of civilization—yes, even more than Cher, who turns 75 today. Mill’s refined the concept of liberty that required the freedom of the individual in opposition to state control. He was the most influential proponent of utilitarianism, the crucial ethical theory developed by Jeremy Bentham. He helped reform scientific inquiry and research, recognizing the pervasive risks of confirmation bias, by clearly explaining the premises of falsifiability as the key component in the scientific method.

Mill was also a Member of Parliament and a towering figure in liberal political philosophy. You have certainly heard or read his most famous quote: “A society that will trade a little liberty for a little order will lose both, and deserve neither.”

A thorough biography and analysis of his work is here.

1. Justice Breyer doesn’t care about making sure the Supreme Court doesn’t get more conservative. Good. That’s not his job. Democrats realize that their control of the Senate is hanging by a thread, “thread” defined as a few superannuated Senators who could drop dead any second, giving the GOP a majority. Thus they are increasingly pushing Justice Stephen G. Breyer, 82, to retire now so Joe Biden can name an appropriately liberal replacement (who will also have to be female and black, vastly limiting the pool of possible choices without concern for actual legal competence.) “Breyer’s best chance at protecting his legacy and impact on the law is to resign now, clearing the way for a younger justice who shares his judicial outlook,” wrote Erwin Chemerinsky, the hyper-partisan dean of the law school at the University of California, Berkeley in The Washington Post this month. Got that? The 80+year-old Democratic Senators have to hold on to their jobs like grim death, but Breyer is being lobbied to retire. Hypocrisy, they name is Democrat! But it isn’t Breyer:

The Justice has been particularly vocal about the importance of not allowing politics to influence judges’ work, including their decisions about when to retire. “My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said last month in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment….If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”

I wonder if he’s read (or seen) “The Pelican Brief”…Meanwhile, research suggest that retirement tends to kill Supreme Court Justices. A paper in The Journal of Demography studied the effects of retirement by Supreme Court justices on their future longevity, and found that the effect of retirement was about the same as smoking two packs of cigarettes a day. The Democrats don’t care if Breyer dies sooner than later, though, as long as he does it when they can pick his successor, or after he’s quit.

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Predictable But Depressing: SCOTUS Agreeing To Consider What Is A Viable Unborn Child Triggers Emotional And Irrelevant Obfuscation From Pro-Abortion Propagandists

/ Jack Marshall / 24 Comments

handmaidens

Gee, that was fast! All the Supreme Court did was agree to look at a part of 1973’s Roe v.Wade that has been rendered anachronistic by subsequent developments in science and medicine, and the pro-abortion lobby freaked out. Dobbs v. Jackson Women’s Health Organization involves the 2018 Mississippi law that bans abortions after 15 weeks of pregnancy. The case raises the obviously relevant ethical, moral and legal question of when human life can be and should be subject to law’s protection. Roe, nearly a half century-old now, based its limits regarding when an abortion was a woman’s constitutional right on when an unborn child was “viable,” a word that requires a conclusion about when human life begins as well. It is not only reasonable but necessary for the court to clarify this. Question 1 in the petition for the writ of certiorari is “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” Good question.

So why the freakout? Simple: neither side in the abortion debate has ever been willing to debate the issue fairly, as both ignore the obviously relevant rights and issues of one of the two human beings involved in the abortion equation. As Ethics Alarms has pointed out before and will continue to do until the stars turn cold, this is an ethics conflict, and a difficult one. Two strong ethical principles are opposing each other, both with major societal implications. In ethics conflicts, the ethical process of balancing is required, but neither side is willing to risk balancing regarding abortion. Thus both have conducted their side of the debate by dishonestly denying the existence of the ethical realities opposing the result they want. The anti-abortion advocates refuse to give fair weight to the effect an unwanted pregnancy can have on a woman’s life and future, and women’s legitimate interests in their own autonomy (which still may not be absolute.) Pro-abortion advocates deliberately ignore the fact, and it is a fact, that abortion involves the taking of human life.

This mutual dishonesty is reflected in the euphemisms the sides of the controversy use to obscure the real problem. “Pro Choice” makes it sound like the only issue is a woman’s autonomy ( Life? What life?). “Pro Life” wrongly cuts the interests of the women involved out of the balancing act. This is the reason the abortion debate has made no progress in a hundred years. The two sides are talking about two different things, and have neither the integrity nor the honesty to deal with the balancing problem.

Roe was a badly reasoned and irresponsibly issued ruling, authored by a serial SCOTUS mediocrity, Justice Harry Blackmun. Somehow, the opinion bootstrapped abortion into being a right under the “unenumerated” Constitutional right of privacy by analogizing it to birth control. But the case in which the Court rightly found that the State had no business telling couples that they could not engage in birth control didn’t involve killing anyone. I’d call that a material distinction.

Roe was one of the most breath-taking leaps of law and logic in the history of the Court, and a throbbing example of judicial activism run amuck. Nonetheless, it has been the law of the land long enough to be regarded as stare decisus; for good and practical reasons, over-ruling the entire case would be bad judicial policy. Addressing aspects of the opinion that were based on scientific assumptions no longer valid, however, is common sense, as well as sound legal policy.

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Oops! So Much For That Gun Confiscation Plan…

/ Jack Marshall / 10 Comments

SCOTUS cartoon

…at least until they pack the Supreme Court, of course….but with lackeys, not liberals.

The Biden Administration, eager to pave the way for the gun confiscation it claims it never would dream of, is eager to expand the “community caretaking” exception from a 1973 case, Cady v. Dombrowski, in which an officer took a gun out of an impounded car without a warrant. The Supreme Court ruled then that police could conduct such warrantless searches as a “community caretaking function” as long as they did so in a “reasonable” manner.

Since the Progressive Borg considers “sensible gun controls” inherently reasonable, and since they (it?) regards the Second Amendment as inherently dangerous to the community, the government argued that“community caretaking” should extend to homes as well as cars.

A Rhode Island man, Edward Caniglia, sued after police officers searched his home and seized two handguns without a warrant in 2015. During an argument with his wife, Caniglia had placed a handgun on the dining room table and asked her to “shoot [him] and get it over with.” His wife left and called the police the next day. She was worried that her husband had shot himself. The police found Caniglia on his porch, alive. He agreed to go to the hospital for psychiatric evaluation “on the condition that the officers would not confiscate his firearms.” But when he did, the police searched his home anyway, and seized his gun.

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Morning Ethics Warm-Up, 5/18/2021: Terrible Ideas, Past, Present, And Future

/ Jack Marshall / 9 Comments

1. Gee, I’m surprised CNN didn’t give him Don Lemon’s old show…Over the weekend, Adeel Raja, a CNN contributor in Pakistan, tweeted, “The world today needs a Hitler.” Raja has repeatedly praised Hitler for trying to exterminate the Jews. During the Wold Cup in soccer, he said that he was rooting for Germany in the final against Argentina because “Hitler was a German and he did good with those jews!” (Actually, there may be more old Nazis in Argentina than Germany, but that’s quibbling.)

Last week’s tweet was deleted (Twitter did not suspend his account; after all, he’s not a Republican or President of the United States). Raja had 54 articles published under his byline at CNNbetween September 1, 2014, and September 15, 2020, all focusing on Pakistani news. CNN apparently didn’t mind relying on an open anti-Semite for news analysis until the latest tweet caused the issue to be raised.

After initially saying that it didn’t recognize Raja’s name, CNN released a statement that “he will not be working with CNN again in any capacity.”

2. The latest strategy in the Left’s plot to keep American masked forever. By “Left” I also mean “the news media,” since they are virtually identical. Digression: Judge Silberman’s brave and accurate confirmation of this provoked fear and horror among the AUC. I wrote about it here, but in case you missed it, here is his entire dissent in a recent libel case. He wrote in part,

“It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. “[The New York Times and the Washington Post ] are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction…Nearly all television—network and cable—is a Democratic Party trumpet.”

USA Today, a lesser trumpet to be sure, more like a kazoo, gave us this:

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