Law & Law Enforcement

The Right To Be Unethical: The 10th Circuit Allows “Faithless Electors”

/ Jack Marshall / 21 Comments

This is professor Larry Lessig. Is it unfair of me to believe that this particular pose is signature significance for a pompous ass? Nobody in the history of photography who wasn’t pompous  posed this way, Lessig has several pictures like this.

The 10th U.S. Circuit Court of Appeals at Denver ruled 2-1 this week that the Electoral College system established by Article II and the 12th Amendment of the U.S. Constitution allows Presidential electors to vote against the candidate the popular vote in their state commits them to vote for. In 1952, the U.S. Supreme Court ruled  that primary candidates for party electors can be required to pledge to support the party’s candidate, but according to this decision, that pledge is not enforceable.

The 10th Circuit’s decision was a victory for Michael Baca, a Colorado elector who in 2016 cast his vote for John Kasich, then governor of Ohio, even though state law at the time required him to vote for the winner of the state’s popular vote, who was Hillary Clinton. Baca said his intention was to persuade enough members of the electoral college to cast votes for Republicans other than Donald Trump in an effort to deny Trump a victory.

Ooh, good plan! One way to avoid this problem is for states to make sure their electors aren’t arrogant, undemocratic whack-jobs.

The state removed Baca as an elector and canceled his vote, causing two other electors to abandon their plans to vote for Kasich. All three joined the lawsuit against the Colorado secretary of state’s office, but the 10th Circuit found only Baca had standing to sue.

It seems that the decision has strong Constitutional law behind it. Baca v. Colorado Dep’t of State said in part, Continue reading →

Morning Ethics Warm-Up: The “I Should Be At The Beach” Edition…

/ Jack Marshall / 34 Comments

Good Morning!

Is everyone vacationing this week but me? I can detect such things from blog traffic—this week has been sparse. Unfortunately this is the legal ethics CLE busy season, so I have been furious preparing materials for three new three-hour programs: “The Legal Ethics Mine Field,” “Legal Ethics Squeeze,” and a new musical ethics seminar for the New Jersey Bar Association, “Ethics Blues,” with the talented Esther Covington. It features legal issues-stuffed parodies of such songs as “Copacabana,” “Sweet Caroline,” “Piano Man,” “You Made Me Love You,” “Isn’t It Romantic” and “Let it Be,” among others. I’ve been writing parody song lyrics since I was 9, and much as I enjoy it, it is mentally exhausting in a way nothing else is.

1.  The anti-Trump news media is all a twitter because former GOP Congressman Joe Walsh might challenge President Trump for the nomination. Joe Walsh!  He’s the only member of Congress ever designated a fick by Ethics Alarms, in this post, about how Walsh, a Tea Party fiscal responsibility hawk who once lectured Barack Obama about how he was placing a burden on the backs of Walsh’s children, owed  $117,437 in unpaid child support to his ex-wife and those already burdened, kids, three of them. For this and other transgressions he was defeated for re-election, and Joe’s now a talk show host, presumably with the same audience that took guidance from former radio bloviators Ollie North and Gordon Liddy.

2. On the innocent until proven guilty front…there has been a spate of defamation lawsuits lately in which priests accused of sexually molesting boys accuse the Catholic Church of ruining their reputations based on publicizing unsubstantiated accusations of pederasty.

A Fresno, California priest,  Craig Harrison, who is facing multiple allegations of sexual abuse, is suing an established  Catholic watchdog group Roman Catholic Faithful (RCF). seeking “unlimited” damages as a result of RCF President Stephen Brady’s “appearance at a press conference in Bakersfield” that addressed “allegations of sexual misconduct” made against Harrison. The lawsuit and summons were filed this month after the Bakersfield Police Department (BPD) concluded an investigation that it said  exonerated Harrison. Brady says that the lawsuit may be intended to discourage other ongoing RCF investigations. Continue reading →

Morning Ethics Warm-Up, 8/20/2019: Fake History, Fake Photo, Fake Assassination, Fake Native American

/ Jack Marshall / 22 Comments

A dramatic good morning to all.

1. Let’s see which news media outlets report this. Because, you know, the President is the one encouraging violence…State senator Martin Sandoval, who represents Illinois’ 11th District, had a  fundraising event last week that included a mock assassination of  President Trump for the enjoyment and edification of Sandoval’s supporters. Photos posted by a woman at the event show someone pointing a fake machine gun at a man wearing a Trump mask. “Trump” is acting as if he has been shot, grabbing his chest and leaning back. In another photo, Sandoval can be seen standing next to the person holding the gun.

Thus busted, and under fire from officials of his own party, Sandoval released a statement over the weekend apologizing for the incident, which he called “unacceptable.” “I don’t condone violence toward the President or anyone else,” Sandoval said. “I apologize that something like this happened at my event.”

Oddly, he didn’t take any action indicating those sentiments at the event.

2. Now THIS is police misconduct! Wow. Portland police suspected Tyrone Lamont Allen of robbing four banks and credit unions. Yet none of the tellers noticed Allen’s  facial tattoos, and he was not wearing a mask. To address that problem, the police photoshopped out the tattoos on Allen’s face before including his picture in a photo line up.

Then the witnesses identified Allen. Continue reading →

Ethics Quiz: The Firing Of Officer Daniel Pantaleo

/ Jack Marshall / 20 Comments

The New York Police Department has finally fired Daniel Pantaleo, the officer shown on video with his arm bent around the neck of 43-year-old Eric Garner just before Garner died  after being tackled by five officers.  A departmental disciplinary judge recommended the action, and Pantaleo was suspended from duty pending further review.

“In this case the unintended consequence of Mr. Garner’s death must have a consequence of its own,” said O’Neill. “It is clear that Daniel Pantaleo can no longer effectively serve as a New York City police officer.” He also added, “If I was still a cop, I’d probably be mad at me.”

The Commissioner kept digging. Continue reading →

Will CNN Have The Integrity To Fire A Partisan, Incompetent, Black, Gay Host?

/ Jack Marshall / 12 Comments

Of course not. But if it comes to a point where that is the dilemma, attention must be paid.

From Fox News (you wouldn’t expect CNN to report this story, would you?):

The former boss of a bartender who earlier this week filed an explosive lawsuit against CNN host Don Lemon, accusing the newsman of a strange, sexually charged assault, told Fox News he witnessed the incident and corroborated his onetime employee’s claim.

In an exclusive interview, George Gounelas, who managed Dustin Hice at the Old Stove Pub in July of 2018, detailed what allegedly occurred on the night of the bizarre encounter at Murf’s Backstreet Tavern, which is located in the prestigious Hamptons area east of New York City. Gounelas is named in the suit filed by Hice.

Lemon, through CNN, has vehemently denied Hice’s allegations.

“Dustin worked for me as a bartender [and] we went out after work one night. We were standing there and he said, ‘Hey, that’s Don Lemon,’” Gounelas said. “Murf’s is a place you go to drink after you’ve been out drinking. We had just gotten off of work. So that’s why we ended up there, because we worked in the restaurant business. So by the time everything is done, we can only hit a late-night spot.”

Hice approached Lemon to strike up a conversation but the newsman declined, according to Gounelas, who said he and Hice then offered to buy Lemon a drink, which the CNN host also declined.

Gounelas said that a few moments later, Lemon came up to them. “Don Lemon has now come around the corner and is standing face to face with us. There is a beam, a pole, in the place. Don’s standing up against the pole, face to face with Dustin, I turn around and I’m standing right there between the two of them,” Gounelas said. “He’s saying, ‘So you like me? Is that why you’re bothering me?’”

Hice responded, “Nah, man, I just wanted to say, ‘What’s up?’” according to Gounelas.

Gounelas told Fox News he couldn’t recall what Lemon said verbatim, but it was “along the lines of, ‘Do you like me? Is that why you’re bothering me, because you wanna fuck me?’” Gounelas said Lemon appeared “pretty drunk” when he confronted the duo at the wee-hours watering hole.

“He put his hands down his pants, inside his board shorts, grabbed his [genitals], and then came out with two fingers and, like, clipped Dustin’s nose up and down with two fingers asking ‘do you like pussy or dick?’” Gounelas said….

Gounelas said he isn’t sure if Lemon, who is openly gay, was being confrontational or simply flirting. “I guess it’s a little of both. If someone had done that to me, I probably would have punched him. But I think it might have been flirting. I think Dustin was more in shock… If someone was flirting with me like that I’d say, ‘alright man I’m not gay,’” Gounelas said. “I wouldn’t go up to a girl like that. It could be his way of flirting.”

Hice continued to work for Gounelas at the now-shuttered Old Stove Pub for the duration of the summer, where his former boss said the bartender was regularly teased about the incident.

Continue reading →

Shameless Self-Promotion Dept.: My Upcoming Smithsonian Program on Cross-Examination

/ Jack Marshall / 4 Comments

I don’t know how many Ethics Alarms readers live in the vicinity of Washington, D.C.—I suspect quite a few—but if you do and are interested in seeing me and my sister present a lively two-hour program exploring many of the legal ethics issues that I have tackled here, along with plenty of history, popular culture and trial technique (and are willing to pay $45 for the privilege as well as some take-home materials),  maybe I can meet you on the evening of October 21st.

The event is called “Courtroom Drama: The Art of Cross-Examination,” and here’s description: Continue reading →

Assorted Ethics Thoughts In The Throes Of Insomnia, 8/17/2019: The Foot-In-Mouth Edition

/ Jack Marshall / 20 Comments

Started as a Morning Warm-Up, then it was a Mid-Day Update, then a Late Night something or other.

1. From the “Steve King is an idiot” files: Rep. Steve King, a Republican from Iowa whose avocation is sticking his foot in his mouth, told the Westside Conservative Club in Urbandale, Iowa that the unborn who result from rape are no less lives that other fetuses, and should not be subject to any “exception” to principled exception to abortion. “It’s not the baby’s fault,” he said.

So far, so good: King is right. Then he had to go and say this:

“What if we went back through all the family trees and just pulled those people out that were products of rape or incest? Would there be any population of the world left if we did that? Considering all the wars and all the rapes and pillages that’s taken place, and whatever happened to culture after society, I know that I can’t certify that I’m not a product of that. And I’d like to think every one of the lives of us are as precious as any other life.”

So when you really think about it, rape and incest are a good things, right, Steve?

That’s certainly how Democrats and progressives took his comments, and to be fair, his infuriatingly ham-handed rhetoric made it easy.  The position that unborn children are just as deserving of life regardless of how they were conceived is a powerful and greatly misunderstood ethical argument. It is not necessary to rationalize rape to make it; in fact, King’s dumb argument just muddles the issue. It’s also bad history and anthropology.

NBC has an article up claiming that King’s words show the “misogyny” at the heart of white supremacy. No, they just show that King is a moron, and we already knew that.

2. Nice. Here’s the title of a Gail Collins op-ed in yesterday’s Times: “How to torture Trump.” Continue reading →

Joe Biden, The Double Standard Candidate

/ Jack Marshall / 11 Comments

The fact that Joe Biden is even taken seriously as a Democratic candidate for President is an indictment of his party, as well as evidence that  progressive principles are instantly alterable, optional or ready for deep freeze any time they become inconvenient.

The ethics value issue, of course, is integrity. If the Democratic Party cared about it, Joe Biden would be looking forward to spending his Golden Years playing with his grandchildren and copping feels with their baby-sitters.

That’s the threshold hypocrisy, as we know. Joe is a serial and unapologetic sexual harasser. There are many photographs online, and probably many more to be found, of him hugging, sniffing, and fondling women of all ages while they seem approximately as comfortable as if Joe were a rabid octopus. The conduct displayed is the equivalent or worse  of behavior that has caused hundreds of executives and  many  high-profile leaders in a wide range of sectors to be removed from their jobs. The Democratic Party styles itself as the party of women and #MeToo, but has been flagrant about applying double and even triple standards: witness Virginia Lieutenant Governor Justin Fairfax, still in office with the support of his party despite both a credible rape accusation and an allegation of sexual assault, both more serious than any of the accusations made against Senator Al Franken, a Democrat, who was forced to resign. None of the Republicans or Democrats who have been pilloried for sexual harassment carry the photographic evidence that indicts Biden, and yet there he is, topping the polls.

The Democratic Party’s hypocrisy goes far beyond harassment where Joe is concerned, however, as a recent Times article called “Joe Biden Knows He Says the Wrong Thing,” itself a naked rationalization to excuse incompetence. Hmmmmm...Is this rationalization  on the Ethics Alarms list? Give me half a minute while I check…

NO!

Incredibly, Joe’s excuse, “I know I’m doing it,” has so far escaped the definitive rationalizations list! That will be remedied shortly.

Joe and his defenders regularly employ other rationalizations for his groping problem (and others), among them, #1. The Golden Rationalization, or “Everybody does it” variations “Everybody is used to it.,” “Everybody accepts it,”“Nobody’s complained before” and “It’s too late to change now,” #8. The Trivial Trap (“No harm no foul!”),#13A The Road To Hell, or “I meant well,” #19A The Insidious Confession, or “It wasn’t the best choice,’  #21A. The Criminal’s Redemption, or “It’s just a small part of what I am!,”#22. The Comparative Virtue Excuse: “There are worse things.,” #41 A. Popeye’s Excuse, or “I am what I am,”  #42. The Hillary Inoculation, or “If he/she doesn’t care, why should anyone else?,” 43. Vin’s Punchline, or “We’ve never had a problem with it!,” and #64A. Bluto’s Mistake or “I said I was sorry!.”

Sorry for the digression. Back to the Times article: I seriously considered posting the whole piece with Donald Trump’s name replacing Biden’s. How could the Times reporters write this, or anyone read it, without noticing that all the habits and tendencies being cited as Joe’s problems are the exact same proclivities that Democrats claim should disqualify Trump for high office, and all of the defenses on behalf of Joe echo the arguments of Trump defenders? Here are some quotes: Continue reading →

Morning Ethics Warm-Up, 8/15/2019: Starring Two Of My Favorite Unethical Websites!

/ Jack Marshall / 29 Comments

WAKE UP!

Oh, great: started this post at 7 am, hell broke lose at ProEthics, and now it’s after noon. Well, the hell with it: I’m not going back to change the headline or the intro, and I like Lenny’s version of the Stars and Stripes at any time of day.

So there.

1. Unprofessional and dangerous stuff from  Above the Law….as usual. The legal gossip and snark online tabloid is run and written by lawyers who are not practicing law, so they feel free to engage in conduct that lawyers are forbidden from engaging in, like misrepresentation.  Lately the cyber rag has been cyber-ragging on Jones Day, a long-time, distinguished D.C. mega firm. Why are they doing that? Come on, it should be obvious.

ATL takes the position—and it has company— that Jones Day is eeeevil and must be shunned because it represents the Trump campaign. Hence you get headlines like “IF YOU HAD TO GUESS WHICH FIRM WOULD DO THIS:New allegations claim Jones Day lightened the skin and narrowed the nose on the picture of one of their lawyers.” Continue reading →

Mark Of The Demagogue: The Ignorant And Dishonest Appeals To Emma Lazarus

/ Jack Marshall / 61 Comments

Friends and followers: Don’t let anyone get away with this. Using “The New Colossus,” the 1883 poem that appears on the Statue of Liberty as authority in any current debate over national policy is either fatuous, ignorant, dishonest, stupid, or a cynical effort to appeal to the emotions of those who have no grasp of history or logic.

There is are periodic outbreaks of silly Lazerus worship every now and then, and we’re in the middle of another one. Indignant memes showing Lady Liberty and some or all of Emma’s one hit poem are popping up all over social media. Anyone who posts one is either an ignoramus, a liar, or shamelessly trying to suck up to progressive friends who are dishonest and ignorant, hoping that nobody will notice. I notice, and so should you. Call them on it. Appealing to the words of “The New Colussus” is approximately as  valid as extolling the words of “Imagine,” “Jabberwocky,” or “Me So Horny.” Anyone who tries it should be mocked and shamed.

The Trump administration issued a final rule yesterday empowering federal officials to deny green cards to legal immigrants who have received certain public benefits or who are deemed likely to do so in the future. Good. This is sensible and responsible policy, and while polls are inaccurate and the public doesn’t understand what it says it approves or disapproves of much of the time, it is also policy about 3/4 of the public seems to agree with.

Of course, Democrats are calling it “racist,” since anything that the Trump administration does is racist. The negative stereotype of the immigrant who dashes to the welfare office the second he becomes a citizen has been around for decades…

but Americans don’t find the behavior funny, and should not. Expecting new Americans given the privilege of using our individual liberties to succeed to the extent their abilities, creativity and diligence will take them to be self-sufficient is completely reasonable and responsible. It also is 100% consistent with the expectations when Emma Lazarus wrote her poem. There was no welfare, public housing, food stamps or other public assistance waiting for those  tired,  poor,  huddled masses yearning to breathe free. There was just the air to breathe free, and the opportunity to succeed or fail. Continue reading →