Law & Law Enforcement

Comment Of The Day: “Yes, It’s Open Forum Time Again!,” And Reflections On The State of Our Democracy, Part 2

/ Jack Marshall / 28 Comments

Part I, and Michael R’s Comment of the Day, are here.

The embedded government bureaucracy has always been recognized as a necessary evil, because the pre-Civil Service system of cleaning house after every election was inefficient and an invitation to cronyism. It cannot be denied, however, that partisan biases and loyalties within the “Deep State” create other serious problems, including individuals taking it upon themselves to undermine and  sabotage policies they disagree with.  Usually the phenomenon is subtle and not routine, but the partisan hysteria weaponized it against Trump, with anti-Trump government employees with influence and power felt more justified in betraying the President than ever before. Prime among this group has been the judiciary, the intelligence community, the State Department, and the diplomatic corps.

Seduced by a partisan narrative, spread daily by the mainstream media, that an illegitimate President who was elected by racists and morons was poised to destroy the country, and maybe the world, because of his greed, stupidity–and insanity!–once unthinkable levels of disloyalty and active opposition to a President by those paid to support the leader chosen by the people were not only justified, but necessary. This attitude quickly metastasized into a coup mentality. This too is routinely derided as a Fox News talking point, but denial only works for so long. In this case, time is almost up.

I finally concluded, early in 2017, that Trump’s election showed that our democracy works and remains vital. The nation was being dragged into a new culture which was violently contrary to core American principles and values that have made the nation what it was, in great part because of the Left’s ideological  capture  of American institutions, notably education, the legal profession, journalism, and the political elites. Somehow, in the inexplicable wisdom of crowd, the ignorant, confused, misinformed and emotion-driven U.S  public found a way to say “Enough!” in the most startling, obnoxious, disruptive way imaginable.

Lincoln was proven right. You can’t fool all the people all the time. Continue reading →

Post Road Trip Ethics De-Brief, 11/20/2019, AND Morning Warm-Up, 11/21/2019

/ Jack Marshall / 30 Comments

Bvuh.

Thinking is a chore right now, never mind typing.

We returned from a triumphant two-Darrow ethics program New Jersey tour, highlighted by the intense Darrow oratory performed by actor/legal instructor Paul Morella. This does a cynical ethics CLE presenter’s heart good: finding myself short of time, I asked the assembled NJ Bar members to vote on whether Paul should omit Darrow’s famous Leopold and Loeb closing argument, or Darrow’s own desperate plea for an acquittal when he faced a jury considering his own guilt of jury tampering in the 1911 MacNamara case. The group almost unanimously voted that we complete both closings, with my ethics commentary as well, bringing the program to an end almost a half hour later than scheduled. Nobody left, and believe me, in most CLE seminars, the lawyers seldom stay one second longer than they have to.

Brought a tear to my eye…

No rest in sight, though: tomorrow, I take an early flight to team up with rock guitar whiz and singer Mike Messer in Las Vegas for Ethics Rock Extreme. And I’m punchy now...

1. Well, maybe the NFL is learning…News item: The Miami Dolphins released already suspended running back Mark Walton on Tuesday, hours after he was arrested on charges of punching his pregnant girlfriend multiple times in the head. Walton had been serving a four-game suspension because of  three arrests before the season started. He was sentenced in August to six months’ probation after pleading no contest to a misdemeanor weapons charge.

Now let’s see if the Patriots sign him…

2. Just a quick impeachment hearings note: It is astounding to me that witnesses are being called by the Democrats to testify regarding their opinions on a President’s phone call to a foreign leader. Big black headlines shout that witnesses called a phone call “inappropriate.” Who cares? The President has the authority to decide what is “appropriate,” and there are no impeachment articles in the Constitution designating “acting inappropriately” according to someone else’s opinion as a “high crime and misdemeanor.”  Leaders become leaders because they do thinks that others think are “inappropriate.”

Don’t get get me  started on presidential actions through the centuries that experts, government veterans and other critics at the time thought were “inappropriate,” or worse.

I started compiling a list of what I would consider genuinely impeachable actions by past Presidents The list makes the current impeachment push look even more contrived than it already is.

3. I see that the group that surreptitiously filmed Planned Parenthood staff discussing abortions was hit with over 2 million dollars in damages. Good. Continue reading →

Comment Of The Day: “Morning Ethics Warm-Up, 11/18/19: Complainers…” (Item#4)

/ Jack Marshall / 17 Comments

The first Ethics Alarms post on my new “Ideapad,” in a DoubleTree in Fairfield, New Jersey, at about 1 am,  after a miserable 4 and a half-hour drive. Fortunately for you and me, it is a Comment of the Day, in which johnburger213 has done all the thought. It’s a tale of multiple jerks and assholes, with a child involved and the news media turning into a across-the-internet controversy a matter that in bygone days wouldn’t have traveled a city block.

Here is johnburger’s Comment of the Day that is only incidentally on the post, “Morning Ethics Warm-Up, 11/18/19: Complainers, Climate Hysterics, Tiny Tims And Fake News”:

Not exactly on point, but there is this story out of Texas: It seems a mom likes to put notes in her 5 year old son’s lunch kit* to remind him she loves him when he eats lunch at daycare. Well, as luck would have it, she put a note in his lunch, asking the daycare worker to tell her son she loves him very much. The daycare worker would have none of that nonsense, so he/she wrote the mother telling her to put her son on a diet instead. Here is a link to the story:

https://abcnews.go.com/US/day-care-worker-fat-shames-year-boy-leaving/story?id=67100183

Now, the daycare worker is a jerk and should be strung up by his/her thumbs for doing something so idiotic. I wonder what goes through the mind of someone who deals with youngsters at a daycare who would tell the mother that said daycare worker would, in fact, NOT tell the child that mommy loves him/her, and would do so by writing a note back to the mother, effectively telling the mother she is a bad parent. Seems cruel to me. Continue reading →

The Last Of The Nazi War Criminals

/ Jack Marshall / 23 Comments

Coincidentally, just as I am completing watching the Netflix documentary “The Devil Next Door,”  another former Nazi prison guard has begun trial on charges that he was an accessory to 5,230 murders at a German concentration camp in Poland during World War II.  “The Devil Next Door” engrossingly tells the strange story of a Ukrainian immigrant named John Demjanjuk who appeared to be a model U.S. citizen, respected neighbor and beloved husband and father in Cleveland before the U.S. decided he was really a former Nazi camp guard nicknamed “Ivan the Terrible” for his sadism and brutality at the Treblinka Nazi death camp in Poland. Demjanjuk was stripped of his U.S. citizenship and tried in Israel from 1986 to 1988 for crimes against humanity. A three judge panel convicted Demjanjuk and sentenced him to hang after a dramatic (and troubling) trial, but the former Ford auto-worker died while his  appeal was pending. Under the doctrine of abatement ab initio, he is still presumed innocent.

As I have written here before, I have many ethical problems with the concept of war crime trials, but “Ivan the Terrible” certainly tests them. Whether or not Demjanjuk  was Ivan, the Treblinka gas chamber operator was a monster even by SS standards, torturing the camp’s Jewish victims before their extermination. In the United States, I cannot imagine that that Demjanjuk would have been found guilty beyond a reasonable doubt: the evidence was compromised, the eye-witnesses often contradicted themselves and appeared confused (“Some were liars, some were senile, and some were liars and senile” is how Demjanjuk’s Israeli lawyer puts it on camera). The most damaging testimony against Demjanjuk was his own, and in the U.S. he never would have been allowed to testify.

Was he “Ivan”? All one can say is “probably.” The case was not proven beyond a reasonable doubt, not even close to it.

At the time, it was widely believed that Demjanjuk’s would be the last Nazi war crimes trial, but now  Bruno Dey, 93,  a prison guard  in the Stutthof camp near what’s now Gdansk, Poland, is being tried in Hamburg, Germany. Continue reading →

For Your Edification: These Members Of The 2019 House Of Representatives Are Facing Ethics Probes

/ Jack Marshall / 9 Comments

Remember that the House Ethics Committee maintains a very narrow definition of “ethics.” Almost all serious ethics allegations and investigations in Congress involve financial misconduct, employment shenanigans, actual criminal conduct or blatant conflicts of interest.  The prohibition against sexual relations with staff was relatively recently added, and even more recently taken seriously, thanks to the Harvey Weinstein Ethics Train Wreck. If the House really was concerned with promoting ethics rather than compliance, it would bring more investigations based on #1 in the House Code of Conduct:

1. A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.

It is fair to say, I think, that this standard has been openly abandoned by both parties.

Here are the current open investigations:

 Representative Alcee L. Hastings, (D-Florida),

Alcee is my favorite unethical House member, and has been for years.  He was impeached and removed from the federal bench in 1989 after the Senate found him guilty of eight impeachment articles, including one charging that he had conspired to receive a $150,000 bribe. Yes, his constituents have shown themselves unworthy of Democracy. Now he is being accused of  violating House rules by having a personal relationship with a member of his staff, and get this: it is with the lawyer who defended him in his impeachment trial. Hastings, who is 83, admits the relationship with Patricia Williams, whom he has had on his staff for years. They even bought a $700,000 house togethet bought a house near Boynton Beach.  Hastings still owes legal fees to her for the work on his impeachment defense, raising another ethics issue regarding inappropriate gifts or “forbearance.” is seeking the payment of debts.

As we know by now,  Representative Katie Hill of California, a first-term Democrat, had a sexual relationship with a member of her congressional staff and had to resign as a result—well, that and the public release of kinky nude photographs inconsistent with House Code of Conduct #1.

Representative Michael F. Q. San Nicolas (D-Guam) Continue reading →

Unethical Quote Of The Week And Incompetent Elected Official Of The Month: Baltimore Mayor Jack Young

/ Jack Marshall / 15 Comments

Sure, be happy and proud, Mr. Mayor! After all, you didn’t commit those murders, and better still, you weren’t the victim of any of them!

“I’m not committing the murders. And that’s what people need to understand. I’m not committing the murders. The police commissioner is not committing it. The council is not committing it. So how can you fault leadership? You know this has been five years of 300-plus murders, and I don’t see it as a lack of leadership.”

—Baltimore Mayor Jack Young, responding to criticism over another year of violent crime in the city, with the number of murders about to reach 300.

Any elected official foolish enough to make such a statement should just resign in disgrace. He is incapable of competent leadership, because he doesn’t understand what it is that leaders do. They are responsible for the welfare of those who follow them, depend on them, trust them. Because they have taken on this responsibility, they are accountable to everyone in the organization—in his case, a municipality—for a deterioration in conditions there. Continue reading →

The Garrett-Rudolph Attack: Yes, It’s Unethical For Even NFL Players To Try To Kill Each Other….

/ Jack Marshall / 2 Comments

As if the game itself, legally played, weren’t enough to cause its players brain damage, in a Thursday Night televised pro football game this week Cleveland Browns defensive end Myles Garrett ripped the helmet off Pittsburgh Steelers quarterback Mason Rudolph and clubbed him in the head with it. The league acted swiftly, suspending Garrett for the rest of this season, including the playoffs should the Browns make them, and reinstatement is by no means assured.

Good.

This is the longest suspension for an on-field incident in NFL history. I can find no fault with Garrett’s apology, Level One on the Apology Scale, issued before the sentence came down. He said, Continue reading →

Ethics Quiz: “Ohio Student Religious Liberties Act of 2019”

/ Jack Marshall / 19 Comments

What new fresh Hell is this?

Perhaps not quite what it appears to be. The mainstream media, hostile as ever to religion, and of course to Republicans, making this a happy twofer, widely described the bill recently passed in the Ohio House as “Under the law, students can’t be penalized if their work is scientifically wrong as long as the reasoning is because of their religious beliefs. Instead, students are graded on substance and relevance.”

Well, that would be crazy. Such a bone-headed law would allow a religious student to state a non-fact as fact (no, the Earth just isn’t 6,000 years old no matter what Williams Jennings Bryan said) but a non-religious student repeating the same error would be graded down. But is this really what the “Ohio Student Religious Liberties Act of 2019” requires?

Here’s what it says:

Sec. 3320.03. No school district board of education, governing authority of a community school established under Chapter 3314. of the Revised Code, governing body of a Sec. STEM school established under Chapter 3326. of the Revised Code, or board of trustees of a college-preparatory boarding school established under Chapter 3328. of the Revised Code shall prohibit a student from engaging in religious expression in the completion of homework, artwork, or other written or oral assignments. Assignment grades and scores shall be calculated using ordinary academic standards of substance and relevance, including any legitimate pedagogical concerns, and shall not penalize or reward a student based on the religious content of a student’s work.

Continue reading →

Ethics Warm-Up, 11/15/2019: Idiots, “Friends,” Rationalizations And Doing Things The Hard Way

/ Jack Marshall / 5 Comments

The Korean War memorial on the Washington Mall….moving and ghostly.

Greetings!

1. The media, doing its best to make the public stupid. Yesterday the collected dolts  of “The View” managed to mangle the concept of hearsay, following a Democrat rep’s absurd contention that hearsay evidence cold be “better” than  direct testimony.  The panel show also misrepresented how the Clinton impeachment proceeded.

Sunny Hostin, the alleged conservative on the panel,  said that  President Clinton’s impeachment  was the result of Linda Tripp’s  testimony, saying , “Clinton was impeached because of Linda Tripp’s testimony, which was complete hearsay!”

How wrong can a statement be? Clinton was impeached because he lied under oath in a hearing involving the civil law suit against him by Paula Jones (as well as for lying to a grand jury and obstruction of justice.) Tripp had made an illegal tape recording of Lewinsky, which was not hearsay. Tripp’s tape was used to get Lewinsky to admit the affair, which was clearly not hearsay. Then there was that stained dress. Had not direct testimony and physical evidence backed up Tripp’s account, Clinton almost certainly   not have been impeached

2. This is why we can’t have nice things. It was inevitable, with all the recent resurgence in interest in the 90s sitcom “Friends,” that the long-running and still-popular show would finally be subjected to one of those depressing reunion specials. This was especially likely because the aging cast isn’t much in demand these days, and mots of them could use a boost.

But Beware, “Friends,” the woke posse is watching. The show about six white hetero singles living in New York was not diverse, and has been criticized in the 15 years since it ended for being implicitly racist, sexist, and anti-LGBTQ. Thus the Righteous have decreed, “Friends’ reunion is all we have wanted for years, but HBO Max version better have more racial diversity and LGBTQ representation.”

Thus we get this,

[T]he iconic NBC show is not without its problems, and yet it entertained us in real-time for ten years and for years after that, making us laugh on the days we are feeling low and making us believe that they will be there for us. It is only natural that we want to relive those feelings again, but even those of us who grew up on ‘Friends’ have outgrown those insensitive jabs about Chandler’s (Mathew Perry) drag queen father, unwarranted fat-shaming of Monica (Courtney Cox), repeated complicity of Joey’s (Matt LeBlanc) sexism and so on.

When the show does return in – hopefully – 2020 for an HBO Max audience, we should hope that it is rich in diversity without it being about tokenism. It is unfathomable that this group of friends who live in New York, the melting pot of America, hasn’t made friends with more diverse backgrounds. Even more so, it is difficult to believe that they haven’t even interacted with people of different sexualities, sexual identities, and races for them to know better than to make jokes about them. It may have flown in the 90s and 2000s, but it definitely isn’t going to in the current day and age.

No, we should hope that it is funny, but if awkward virtue signalling and making sure that all the EEOC boxes are checked while making up for ten years of insensitively showing a group of friends who hung out primarily with people like themselves (like most of us), are going to be the priorities, and you know they will be, it would be kinder and more responsible to leave Ross, Chandler, Joey, Phoebe, Rachel and Monica where they belong—in the past, on re-runs.

Incidentally, one of the two funniest jokes I ever heard on “Friends” involved “fat-shaming.” The groups was watching an old home movie taken when Monica was a grossly over-weight teen. The now svelte woman, embarrassed, said, “They say that the camera makes you look 15 pounds heavier,” to which Chandler replied, “Just how many cameras were on you?”

3. Upon reflection, I don’t think I need to add this new rationalization. The Rationalization List is stuck at 99, and I have been wondering what #100 would be. When I was writing about the now-fired Canadian hockey pundit Don Cherry bringing himself down with his big mouth, I was annoyed by how many of his defenders argued that Don was just being Don, and since he was always Don, and “didn’t mean anything” by being Don, and was popular because he was Don, being Don shouldn’t be held against him. I suspect this bothered me so much because it appears to be the only thing keeping Joe Biden from being ripped to pieces by #MeToo Furies, as he richly deserves to be. So briefly I considered the need for a “It’s just who he is” rationalization.

Upon reflection, I demurred. This is cutting the rationalizations too thin. We already have Rationalization 41 A. Popeye’s Excuse, or “I am what I am”:

Sure, let’s stipulate that the jerk is exactly who and what he presents himself as being. This doesn’t excuse his conduct in any way. He is what he is, and what he is is an irresponsible, narcissistic, rude, boorish, uncivil, nasty, destructive, ignorant, impulsive untrustworthy and despicable creep. Being a real  irresponsible, narcissistic, rude, boorish, uncivil, nasty, destructive, ignorant, impulsive untrustworthy and despicable creep is no more ethical than being a phony one. In this case, transparency is not a virtue.

..and Joe Biden even has his own rationalization springing from Cherry-like excuses, Rationalization 38B, Joe Biden’s Inoculation or “I don’t deny that I do this!”

A sub-rationalization to #38. The Miscreant’s Mulligan or “Give him/her/them/me a break!,” Joe Biden’s Inoculation argues that habitual bad conduct is mitigated by one’s open admission and acknowledgment that one’s engaging in it is an ongoing problem.

I think this base is well covered. The search for #100 goes on…

4. Why didn’t she just take the bar exam one more time?  I don’t understand this story at all.

Roberta Guedes graduated from Stetson University College of Law in 2014, but she  failed to pass the Florida Bar exam twice. The traditional remedy for this is boning up and taking the exam again, and again if necessary, but noooooo. 

Instead, federal prosecutors say, she used the name of a classmate  to register two new law firms with the state Division of Corporations. Agnieszka Piasecka attended law school with Roberta, and the friends  talked about starting a law firm together, When Guedes flunked the bar exam, Piasecka who did not flunk,   opened her own firm in Clearwater,  specializing in wills and trusts, immigration, and divorce cases.

The plot began when Guedes offered Piasecka the free use of her  office in downtown Tampa to meet with clients a few times.

In September 2014, Guedes incorporated a firm she called Ferguson and McKenzie LLC, listing Piasecka as its registered agent. In November, she started a second legal services business called Immigration and Litigation Law Office, Inc., listing another woman, Arlete Chouinard, as a vice president and manager.  Neither Piasecka nor Chouinard knew about this. She created websites for both companies, including claims of  national and international offices that didn’t exist, and faked partners and associates using stock photos. She also represented clients, accepting fees while never telling them that she had no license.

Now Guedes, 40, faces prison time after pleading guilty to federal charges of mail fraud and aggravated identity theft. It is fair to say that it is now too late to pass the bar exam.

No Way Out? The Rodney Reed Affair [UPDATED!]

/ Jack Marshall / 9 Comments

Rodney Reed was convicted by a Texas jury in 1998 and sentenced to die for the rape and murder of 19-year-old Stacey Stites two years earlier. On April 23, 1996, Stites’s body had been found on the side of a country road outside of Bastrop, Texas. Marks on the woman’s  neck led investigators to conclude that she had been strangled, and she had had sexual relations with someone before she was killed.

Police tested the recovered DNA against that of Reed, then 29 years old.  There was no other evidence tying Reed to the murder, other than the fact that he initially lied to police, claiming that he didn’t know the victim. Finally, Reed said that he was having a sexual affair with her, and that the two had sex a couple of days before Stites was found dead. The witnesses Reed’s defense called to confirm the relationship between the two were not convincing, for varying reasons. It didn’t help Reed’s cause that he was regarded as a serial sex offender, with many arrests on his record.

As The Intercept explains in detail, the case against Reed has deteriorated over time, and was never strong to begin with. Many forensic pathologists have concluded that the verdict lacked scientific support. The medical examiner who conducted Stites’s autopsy has recanted his testimony. In 2018, both a state crime lab and a private DNA lab undercut the testimony of their own employees who had testified at Reed’s trial.  Nonethless, Reed is scheduled to be executed in five days, on the 20th of November.

The new evidence indicating that he was wrongly convicted has not been reviewed by a court and apparently will not be because of the judicial principle of finality, the very old concept that hold that legal disputes at some point achieve a resolution that cannot be appealed and must be regarded as final. The principle is deemed necessary because without it, the public could not trust in the meaning of any law, or the result of any legal process. It is a utilitarian principle: individual cases may have unjust results occasionally, but the system as a whole benefits from the certainty of finality.

When the finality principle will result in the execution of a someone who appears to have been wrongly convicted, however, the gap between law, justice and ethics is difficult to accept.  The Supreme Court will consider Reed’s case today. There is also a plea to Abbott and to the Board of Pardons and Paroles to intervene.

The ABA has also made an appeal to the Board, via a letter from American Bar Association President Judy Perry Martinez.  Continue reading →