Law & Law Enforcement

Morning Ethics Warm-Up, 12/1/2020: Satchel Paige Edition

/ Jack Marshall / 26 Comments

Satchel

Why Satchel Paige? The legendary Negro Leagues pitcher and member of baseball’s Hall of Fame once said, “How old would you be if you didn’t know how old you was?” Satchel wasn’t fooling: having played most of his career when blacks were blocked from the Major Leagues, Paige was still good enough at 42 to join the 1948 Cleveland Indians as a relief pitcher, and was effective enough to be contender for Rookie of the Year. Then he became the oldest pitcher to start a Major League game, shutting out the Boston Red Sox for three innings at the age of 59.

In my case, the answer to Paige’s question would be about 18, or perhaps 10. Surely not the age my arithmetic tells me, which is depressing and a little frightening. Every December first since 2009 has been a day with bad connotations: I found my father dead in his favorite chair that year, when I checked to see if he was going to have dinner with me as we had planned. This year there are two. Well, Dad soldiered on to have 19 more productive and mostly happy years after he reached my age, and he was being treated for cancer by than, and I’m not. There aren’t many ways I can top my father, but at least that’s gives me something to shoot for.

1. Wow. You don’t get to see such naked bias and hate just put out there in the media like this very often…Just think: a Washington Post editor okayed this article attacking the White House Christmas decorations and using them to excoriate Melania Trump for existing. How petty and ugly can a writer be and still get published? I guess it depends on whether or not your target is the Trumps.

The “money quote”: “[T]he defenders of Melania have always insisted on comparing her to her predecessor, Michelle Obama, and it became hard to believe that “elegant” was a code word for anything other than “White.” Melania is “elegant” because she represented a very specific kind of White femininity: silent, lovely, delicately fingering the ornaments that her staff had assembled.” The author is Monica Hesse, the Post’s gender writer. She is a biased, vicious, jerk. It is so obvious that Melania Trump could design Michelle Obama’s White House decorations and Michelle could secretly design the Trumps’, and Hesse would pronounce what she thought was Michelle’s inclusive and brilliant, and would condemn what she thought Melania created.

You know, pretty much the way her paper covered the Obama and Trump administrations.

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Rainy Monday Ethics, 11/30/2020: Statues, Dogs And Lies

/ Jack Marshall / 61 Comments

Also getting me down, Karen Carpenter songs. As with great movies with O.J. Simpson or Gig Young in them, these are hard to enjoy now, at least for me. One of the most lovely natural voices in pop music history was silenced by the pernicious disease of anorexia, exacerbated by, among others, her brother, her family, and music industry executives, who made Carpenter so self-conscious about her weight and appearance that she slowly starved herself to death before her 33rd birthday. I wish I could hear her sing—and I will do that a lot in the days approaching Christmas—without thinking about that, but I can’t.

1. Proposition: any nation’s historical figures who had the impact on those nations that Margaret Thatcher did in Great Britain over a significant period of time deserve to be memorialized with statues, absent some cataclysmic disqualifying act, like Richard Nixon’s Watergate scandal. Even in Nixon’s case, I would support a public memorial to such a historically influential figure.

In the English town of Grantham, where Thatcher grew up, an 11-foot pedestal awaits the arrival next year of a large statue of “the Iron Lady.” Apparently many in Britain, and a large proportion of Gratham’s working class residents, disapprove of Thatcher’s conservative politics and policies, and thus oppose the statue, which will be in immediate danger of toppling the minute it is erected.

Morons. One doesn’t have to personally agree with a historical figure’s position or even admire her to appreciate the impact that figure had. The criteria for memorializing prominent citizens should center on whether future generations need to know who they were and what they did, not whether their achievements and conduct are approved of according to often fleeting political, social and cultural values. Charles Moore, who wrote an authorized biography of Mrs. Thatcher, says, “It’s obvious there should be statues to Britain’s first woman prime minister. But…but…George Floyd! The New York Times’ article on the controversy says that statue toppling has become a world-wide phenomenon since the death of George Floyd. Now that makes sense: one of Great Britain’s most successful and important leaders should be robbed of her legitimate honors because a rogue cop accidentally contributed to the death of a black criminal in Minnesota.

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Sunday Ethics Insomnia, 11/29/2020: No Wonder I Can’t Sleep!

/ Jack Marshall / 15 Comments

1. I hate 99.9% of the petitions offered at Change.org. but I’m signing this one . It reads,

Professor Dorian Abbot, a tenured faculty member in the Department of Geophysical Sciences at the University of Chicago, has recently come under attack from students and postdocs for a series of videos he posted to YouTube expressing his reservations about the way Diversity, Equity, and Inclusion (DEI) efforts have been discussed and implemented on campus.
In these videos Prof. Abbot raised several misgivings about DEI efforts and expressed concern that a climate of fear is “making it extremely difficult for people with dissenting viewpoints to voice their opinions.” The slides for each of Prof. Abbot’s videos can be found here, and his own account of events and his opinions can be found here. Nowhere in these materials does Prof. Abbot offer any opinion that a reasonable observer would consider to be hateful or otherwise offensive.

Shortly after uploading the videos, Abbot’s concerns were confirmed when 58 students and postdocs of the Department of Geophysical Sciences, and 71 other graduate students and postdocs from other University of Chicago departments, posted a letter containing the claim that Prof. Abbot’s opinions “threaten the safety and belonging of all underrepresented groups within the [Geophysical Sciences] department” and “represent an aggressive act” towards research and teaching communities.

[Pointer: Pennagain]

2. “Hello, Newman...” According to the Postal Service’s own records, more than 150,000 mail-in ballots were not delivered in time for them to be counted on election day. This is, of course, as I and anyone else who was paying attention expected and predicted, because the USPS is undependable

I am surprised that the number was that low.

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2020 Election Ethics Train Wreck Update: Ethics Zugzwang In Pennsylvania

/ Jack Marshall / 16 Comments

pennsylvania-scaled

[Let me begin by apologizing for being so inconsistent in my spelling of zugzwang (or zugswang). Both are acceptable, but I should pick one, and I’m picking zugzswang, because it will score more points in Scrabble. I will eventually go back and change the many “zugswangs” in previous posts.]

Oh-oh.

A Pennsylvania state court judge yesterday issued a preliminary injunction preventing Pennsylvania from taking any further steps to certify the election, including the assignment of 20 electoral votes to Joe Biden,pending further court hearings and rulings. The ruling upholds an injunction from earlier in the week.

The opinion is here. The issue is whether legislative expansion of absentee balloting to universal mail-in balloting violated the Pennsylvania Constitution. (It sure looks like it to me.) The petitioners seek to preclude the Secretary of State from transmitting the certification or otherwise perfecting the electoral college selections.

Here is the judge’s description of the claim:

In the Petition, Petitioners allege that the Act of October 31, 2019, P.L. 552, No. 77 (Act 77), which added and amended various absentee and mail-in voting provisions in the Pennsylvania Election Code (Election Code),1 is unconstitutional and void ab initio because it purportedly contravenes the requirements of the Pennsylvania Constitution. Petitioners allege that Article VII, section 14 of the Pennsylvania Constitution provides two exclusive mechanisms by which a qualified elector may cast his or her vote in an election: (1) by submitting his or her vote in propria persona at the polling place on election day; and (2) by submitting an absentee ballot, but only if the qualified voter satisfies the conditions precedent to meet the requirements of one of the four, limited exclusive circumstances under which absentee voting is authorized under the Pennsylvania constitution. (Petition, ¶16.) Petitioners allege that mail-in voting in the form implemented through Act 77 is an attempt by the legislature to fundamentally overhaul the Pennsylvania voting system and permit universal, no-excuse, mail-in voting absent any constitutional authority. Id., ¶17. Petitioners argue that in order to amend the Constitution, mandatory procedural requirements must be strictly followed. Specifically, pursuant to Article XI, Section 1, a proposed constitutional amendment must be approved by a majority vote of the members of both the Pennsylvania House of Representatives and Senate in two consecutive legislative sessions, then the proposed amendment must be published for three months ahead of the next general election in two newspapers in each county, and finally it must be submitted to the qualified electors as a ballot question in the next general election and approved by a majority of those voting on the amendment. According to Petitioners, the legislature did not follow the necessary procedures for amending the Constitution before enacting Act 77 which created a new category of mail-in voting; therefore, the mail-in ballot scheme under Act 77 is unconstitutional on its face and must be struck down. Id., ¶¶27, 35-37. As relief, Petitioners seek, inter alia, a declaration and/or injunction that prohibits Respondents from certifying the November 2020 General Election results, which include mail-in ballots that are permitted on a statewide basis and are allegedlyimproper because Act 77 is unconstitutional.

The Judge found that the plaintiffs were likely to prevail on their state constitutional claims…

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2020 Election Ethics Train Wreck Update: Well THIS Doesn’t Bode Well…

/ Jack Marshall / 17 Comments

spelling problem

That’s the embarrassing first sheet of the more than 100 page lawsuit filed by lawyer Sidney Powell asking that 96,000 ballots (“at minimum”) in Georgia be disqualified. This is apparently the attack on the Georgia election that Powell referred to as releasing “the Kraken.”

Nobody seems to feel it’s necessary to explain that “Release the Kraken” is a reference to the semi-cheesy Ray Harryhousen stop-action film “Clash of the Titans,” which starred “LA Law’s” Harry Hamlin as Perseus, the Greek mythological hero. In the movie (though not in mythology), Perseus defeats the monstrous Kraken, which is released by the bad guys to kill him and Andromeda (it’s complicated). For some reason Perseus, in addition to carrying around Medusa’s head (which turns the Kraken to stone), rides the winged horse Pegasus. Pegasus was the transportation of a different Greek myth hero, Bellerophon. Neither Bellerophon nor Perseus had anything to do with the Kraken, which is not even a Greek myth monster. It’s Scandinavian, and is basically a giant squid.

Observations:

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Ethics Quote Of The Month: Justice Neil Gorsuch

/ Jack Marshall / 20 Comments

First-Amendment-on-scroll1

“It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

That is the final line of  Justice Gorsuch’s concurring opinion to the SCOTUS majority’s per curiam ruling, released last night,  in favor of New York Roman Catholic and Orthodox Jewish groups that sued over the state’s limited religious service attendance rules in response to the Wuhan virus.

The majority’s ruling concludes in part,

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic,the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.

The emerging new Left no longer regards religious liberty as a big deal—ironic, since today we celebrate the group of religious expatriates who helped found our nation to escape religious persecution. The entire opinion, the concurring opinions of Justices Kavanaugh and Gorsuch, and the dissenting opinions of Chief Justice Roberts, Sotomayor and Breyer (Roberts argues that the case is moot) can be read here.

There can no longer be any reasonable doubt that President Trump’s Supreme Court nominations have provided the nation and its citizens with crucial protection  from a furious assault on its core rights by the suddenly “ends justify the means” obsessed Left. State and city government resorting to arbitrary edicts during the pandemic is but a preface to what is coming over the next four years.

If for nothing else, Americans who cherish the liberty that makes the nation unique and the hope of the world should give thanks this day for President Trump, and the Supreme Court he has left as his legacy.

 

 

Pre-Crummy Thanksgiving Warm-Up, 11/25/2020

/ Jack Marshall / 11 Comments

Friend thanksgiving

1. It’s a good thing I’m not a conspiracy theorist…because it would then be easy for me to conclude that the Wuhan virus lock-downs, travel restrictions and dictatorial measures enacted by various Democratic Party-run states as well as the would-be edicts of the CDC are part of a calculated plan to weaken the family, isolate and divide the citizenry, undermine religion, increase fear and desperation, and further weaken American traditions and institutions, all for the purpose of paving the way for a totalitarian, single-party takeover. Killing Thanksgiving, which has been on the anti-American hit-list for a long time, would be an obvious and effective step in such a plotan.

Fortunately I am not a conspiracy theorist, and I view these developments from the perspective of Hanlon’s Razor. However, Thanksgivingcide this year, though not premeditated, will still advance the cause of the fascists of the Left, who are real, powerful and with the election of Joe Biden, on the ascendance.

What is particularly galling is that it is nearly impossible to hold a Thanksgiving family dinner this year even if one wants to be defiant, as I do. The various quarantine rules make traveling futile. The fearmongering has worked: my sister, for example, is now a full Wuhanphobic. She wouldn’t come into my home, and wouldn’t allow us in hers. I will not patronize another restaurant that requires diners to wear masks between bites, like the one in Arlington, Virginia we used last month to try to celebrate my son’s birthday—I’d rather starve—or rush to put the damn things on whenever a waiter nears the table.

Next up, Christmas. That’s been on the Left’s hit list for a long time too.

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Ethics Proposition: Justice Barrett Should Immediately Recuse Herself From Any Future SCOTUS Decisions Relating to the 2020 Presidential Election

/ Jack Marshall / 70 Comments

Barrett Trump

I will stipulate that the newest Supreme Court Justice does not have to recuse, and that even the judicial ethics rules applying to other Federal judges (no judicial ethics rules are controlling for Supreme Court justices) would not require recusal in Justice Barrett’s circumstances.

I will also concede that the arguments that she should not recuse are significant and important:

1. Were she to recuse, it would be interpreted by many as an acknowledgment that her Senate critics and others were correct to suspect that she was nominated to assist the President if necessary in any Supreme Court challenges to the election results.

2. Her recusal would suggest a precedent holding that a Justice being nominated by a President creates a rebuttable presumption that such a Justice has a conflict of interest that would interfere with the Justice’s ability to exercise independent and objective judgment in any case directly affecting that President’s interests.

3. Her recusal would leave the Court with a potential 4-4 split on a case that would have major impact on the nation.

4. Democratic officials’ demands that she recuse herself are driven purely by partisanship, and are hypocritical. Justice Kagan, appointed by President Obama, did not recuse herself in cases involving the Affordable Care Act, for example.

All this is true,

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40th Anniversary Ethics, 11/23/2020…

/ Jack Marshall / 33 Comments

That was the recording the lovely and brilliant Grace Bowen Marshall and I danced to at our wedding reception. An old fashioned tune, you say? Hell, it was old-fashioned then. After an uproarious party featuring the combined talents of my two performing groups, The Showstoppers and The Music Lobby, seasoned by my cherished friend Jay Silva’s saxophone rendition of “Zing! Went the Strings of My Heart.” I performed “Let a Woman in Your Life” (from “My Fair Lady”), and it was off to the historic Hay-Adams hotel (across from the White House) and from there to a cozy Civil War era inn near Charlottesville, where the charming host brought us breakfast in bed, and his cat and dog slept with us. As I said: cozy.

And thus began a great adventure that still has some twists and turns, battles, defeats and triumphs to reveal.

What a wonderful day.

1. Stay classy, Jenna!

Micropenis

You know, once upon a time a public utterance like this would be viewed as a breach of legal professionalism, if not an outright ethics violation. By the standards of past Trump lawyers like Michael Cohen, however, it seems positively quaint.

This kind of thing is why I caution lawyers to avoid Twitter.

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The 2020 Election And “The Fruit Of The Poisonous Tree”

/ Jack Marshall / 45 Comments

The Fruit of the Poisonous Tree is a century-old legal doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was discovered as a result of illegally obtained information or evidence. If the evidence”tree” is “poisoned,” so is its “fruit.” The doctrine was established in the 1920 case of Silverthorne Lumber Co. v. United States; Justice Felix Frankfurter gets credit for the metaphor from his 1939 opinion in Nardone v. United States.

There are three exceptions to the rule. The evidence will not be excluded if it was discovered from a source unrelated to the illegal activity, if its discovery was inevitable, or if the connection between the illegal activity and the discovery of the evidence is weak. The most famous example of the doctrine in action is probably “Dirty Harry,” where a mad serial killer is set free because detective Harry Callahan locates where the maniac had buried a girl alive by torturing him until he revealed the information..

The “fruit of the poisonous tree” analogy has turned up in the Ethics Alarms comments and elsewhere on the web regarding a possible application to voter fraud in the 2020 election. The theory: even if enough votes in a particular state can’t be conclusively shown to have been fraudulent to change that state’s winner in the Presidential election, substantial proof of cheating by the party prevailing in that states’ voting ought to invalidate the result, since the vote total itself was the result of cheating, and the entire election is “poisoned.”

There is a lot wrong with the theory and the analogy, both from a legal and an ethical perspective.

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