Law & Law Enforcement

Sunday Ethics Warm-Up, 9/22/2019: Five Ugly Ethics Stories (Sorry!) [Corrected]

/ Jack Marshall / 17 Comments

A pleasant Sunday…

as long as I don’t read the newspaper or watch the Talking Heads…

1. Before I finish a long post about the most recent contrived Brett Kanavaugh smear by the New York Times, ponder this quote from the Times review of “The Education of Brett Kavanaugh”: “[The authors] come to a generous but also damning conclusion, which is that Blasey Ford and Ramirez are believable and were in fact mistreated by Kavanaugh as teenagers, but that over the next 35 years he became a better person.”

Ugh. The conclusion is “damning” because it relies almost entirely on confirmation bias: Blasey Ford’s own lawyer revealed that her motive in using her “recovered memory” against Kavanaugh was to discredit any future anti-abortion opinions he participated in as a member of the court. The accusation by Ramirez isn’t, apparently, even believable to Ramirez herself, since she says she isn’t certain that the Mad Penis-Dangler was Bret Kavanaugh. Why then, do the authors find the claims “believable”? Oh, because they want to believe them, of course; they work for the New York Times, and they certainly weren’t going to get their book promoted by their employer and snatched up by its readers if they concluded, as objective reporters would, that there is no more reason to believe Justice Kavanaugh did these things than there is reason to believe he didn’t.

The real ugh is this, however: if even these biased analysts conclude that the accusations, even if true, do not have any relevance on the grown man who was nominated to the Supreme Court because they relate to a minor who existed 35 years ago—and who has, as most children do, grown up—then the episodes that their book focuses upon literally don’t matter, shouldn’t have been brought into Kavanaugh’s hearing,  and should not be used now to denigrate and discredit him.

2. From “Social Q’s,” a glimpse of what a malfunctioning ethics alarm is like. Prompting the frequently appearing question in my mind, “How does someone get like this?” was the query into Phillip Gallane’s advice column from a woman who threw herself a birthday party, directed guests not to bring gifts but to make a donation to a charity she supports instead, and was annoyed that some brought gifts anyway. She asked if it would be inappropriate to send the gifts back with a disapproving note so they “would listen” to her “next time.”

I know what I would do “next time”…

3. Hey, sounds great, Facebook! Why wouldn’t everyone trust your judgment? Facebook announced  a series of changes last week to squelch hate speech and extremism—meaning what Facebook and its allies consider such— on its platform in a letter to the chairman of a House panel. Facebook said it would prevent links from the fringe sites 8chan and 4chan from being posted on its platform—you, know like it blocks links to Ethics Alarms!  Then it explained how it would develop an oversight board of at least 11 members to review and oversee content decisions—like the decision that a wide-ranging ethics blog that has no political affiliation or agenda, written by a professional ethicist of some note, doesn’t meet the Facebook “community standards.”

In other, unrelated news regarding the obstacles being thrown in my path, the Appeals Court in Massachusetts finally alerted me that it was taking “under advisement” the request for an appeal of the rejected frivolous defamation suit filed about two years ago by a banned commenter here whose boo-boo I wounded.

(I am not concerned.) Continue reading →

Open Forum, Or “I Guess I Picked The Wrong Time To Start Driving All Over Virginia!”

/ Jack Marshall / 93 Comments

Today’s legal ethics smackdown in Richmond went swimmingly, but I only got home in time to change clothes and head off to the site of tomorrow’s repeat performance. I actually started a post about the unfolding New York Times smear fiasco (and the astounding number of pundits and pols who are trying to spin it away from the only possible and fair conclusion), but I just couldn’t get it done.

I’ll be back in the blog saddle til late tomorrow. Meanwhile, I am once again turning the keys over to you, dear readers. You haven’t let Ethics Alarms, or me, or ethics, down yet.

Go to it.

Regarding Felicity Huffman’s Slap-On-The-Wrist

/ Jack Marshall / 21 Comments

Before actress Felicity Huffman was sentenced for her participation in the rigged college admissions scandal, also known as “Varsity Blues”, the leftist website Salon had already pronounced her treatment by the justice system as racist. It said in part,

Back in 2011 Tanya McDowell was homeless and living in her van. She wanted her five-year-old son to receive a quality education, so she enrolled him in Brookside Elementary of the Norwalk School District. He was later kicked out due to a residency issue, so he transferred to Bridgeport schools.

Police investigated McDowell and charged her with fraud. A year later she pleaded guilty to first-degree larceny and conspiracy to commit first-degree larceny; for these offenses, she received a five-year sentence. Before McDowell started serving it out, she was charged with selling narcotics to an undercover police officer, an offense that killed her community support. McDowell was ultimately given 12 years, to be suspended after she served five, and followed by five years of probation; the narcotic sentence to run concurrently with a five-year sentence she had already received in the Norwalk school case. All of this story, from the over-policing of this mother to the severity of her sentence, along with everything she did, was obviously driven by poverty, which remains synonymous with “guilty” in our lopsided system of so-called justice.

On the other hand, you have a person like Felicity Huffman, who enjoys the many privileges that come with being a rich “Desperate Housewives” star…and having the resources to expose her daughter to educational advantages that McDowell may not have even been able to dream of: tutoring, unlimited books, technology, a safe learning environment, and even an SAT specialist who helps struggling kids obtain high scores. …[T]he actress was arrested in March on mail fraud and conspiracy charges as an outcome of the FBI’s Operation Varsity Blues investigation, and pleaded guilty to mail fraud, after paying $15,000 to allegedly rig her daughter’s SAT scores. Huffman is scheduled to be sentenced in Boston on Friday — for one month in prison, if the federal prosecutors’ recommendation is followed. Huffman’s attorneys have instead asked for a year’s probation, plus community service and a $20,000 fine.

Let’s begin with the fact that this is unethical and dishonest advocacy. Searching for an admittedly terrible prosecution from eight years ago  to contrast with Huffman’s case is contrived racism. The fact that the mother was later legitimately charged with selling narcotics renders the comparison a stretch at best.  In the absence of sufficient numbers of cases across the country to make a valid generalization, Salon’s assumptions are just cheap muckraking.

Stipulated: charging McDowell with larceny for trying to sneak her child into a better school district was a cruel and unethical prosecution; charging her with fraud and seeking a significant punishment was not. The idea was to discourage similar deceptions, no matter how well-intentioned they were.  That is a valid law enforcement objective, and an important one.

What Huffman’s attorneys proposed as appropriate punishment was irrelevant to Salon’s thesis. Their job is to get the actress as light a sentence as possible, and if possible, no sentence at all. We are not told what McDowell’s attorney’s argued on her behalf, because it is also irrelevant, but, I suspect, it was omitted because their recommendations were not that different from those of Huffman’s case. Continue reading →

This Would Be The Most Unethical Tweet Of Any Normal Year, But The 2019 Competition Is Too Tough…

/ Jack Marshall / 25 Comments

Observations:

  • I can’t respect anyone who would support a candidate who could think this, much less publish it, to be President of the United States.
  • By the way, did you know that President Trump is a threat to democracy? Bernie has said so many times.
  • Sanders really needs to bone up on what “democracy,” “rule of law,” “due process,” “ex post facto,” and other core concepts mean.
  • Trump puts out tweets like this occasionally, suggesting that there “should” be some way to legally penalize various individuals who do things that are completely legal. This usually spawns angry, insulting and indignant op eds all over the media. I will patiently wait for the equivalent reaction to Bernie’s tweet. In vain.
  • Will anyone ask Sanders about this sentiment in the next debate?
  • For a U.S. Senator and political leader to state that it is appropriate to imprison U.S. citizens for the non-existent crime of not conforming to progressive cant is itself undermining democracy.
  • Yet Presidential candidates who do this should not be criminally prosecuted for the destruction they are knowingly causing. They should  be ridiculed, condemned, and ignored.

Comment Of The Day: “The Euthanasia Slippery Slope: A Case Study”

/ Jack Marshall / 23 Comments

 Ethics Alarms master commenter Mrs. Q has the highest ratio of Comments of the Day to comments of any of the erudite participants here. If she would consider it, I’d love to feature her ethical musings in a regular column on the blog. This is the first of two Mrs. Q compositions you will see this weekend; it concerns the issues of euthanasia and consent, which were explored in twoposts this week, and a poll. Regarding that: here is the still live survey regarding the hypothetical I posed in this follow-up to the one about the Dutch doctor:

As you can see, those supporting the opposite position of Mrs. Q (and me) are in a distinct minority.

Here is Mrs. Q’s Comment of the Day, a reply to another commenter,  on the post, “The Euthanasia Slippery Slope: A Case Study.”

My God fearing Catholic grandma had the opposite response to yours. She was 102 & 7mo. and after breaking her hip it was too late to even think of surgery. She continued to weaken & lose weight yet she fought by drinking milkshakes & trying to greet her many family/visitors.

Before she got to this point a few years prior, her care coordinator somehow changed her directive to DNR, which as a Catholic she wouldn’t have agreed to, yet this person tried to convince the family that my grandma said yes to the change. If my family hadn’t checked the paperwork, my grandma’s incorrect and unauthorized change would have remained; however our family changed it back. My understanding is such acts are not uncommon in these facilities.

Fast forward to her last days. She was increasingly given higher doses of morphine & we weren’t allowed to even give her sips of water, though she was clearly thirsty. Her last words ever spoken while she gripped onto me, and heard by everyone in the room were “I don’t want to die.” She didn’t want to go and the nursing home was killing her and she knew it.

I still feel complicit in her death, as I tried to “go along” with staff who I assumed knew best. Continue reading →

Unethical Quote Of The Week: Senator Kamala Harris

/ Jack Marshall / 17 Comments

“Well, I mean, I would just say, hey, Joe, instead of saying, no, we can’t, let’s say yes, we can.”

Democratic Presidential nominee hopeful Senator Kamala Harris, responding to Joe Biden’s 100% correct observation that a President could not ban so-called “assault weapons” by executive order as Harris had pledged she would, due to the Constitution.

When I was preparing yesterday’s post on the ABC Democratic candidates debate, this statement, which made my head explode at the time it was delivered, was supposed to have a prominent place. Then I couldn’t find it in the transcript. Why? I’m an idiot, that’s why. Somehow I got it in my head that the speaker was Elizabeth Warren, not Harris, so I was searching the transcript for her, and not finding the exchange. Finally I gave up.

Luckily Ann Althouse was similarly nauseated by the same Harris quote, and posted about it on her blog later in the day. Among the truly scary statements, and there were many of them, during the debate (ask your Democratic friends if they can name a single similarly outrageous policy-related quote during any of the 2015 and 2016 debates  by candidates of either party) I rank Harris’s as #1, followed by Beto’s epic “Hell, yes, we’re going to take your AR-15, your AK-47…” and Biden’s ridiculous “Nobody should be in jail for a nonviolent crime” statement. (Incidentally, he launched a fun parlor game: see if you can top other players with the most sinister character who would have avoided prison time under Joe’s formula. My favorite: Al Capone). Continue reading →

Friday Ethics “Kung Fu” Reflections, 9/13/2019: “Seek Not To Know The Answers, But To Understand The Questions.”

/ Jack Marshall / 15 Comments

Welcome, Ethics Grasshoppers!

Come to think of it, grasshoppers are not particularly ethical. Does anyone even recognize references to “Kung Fu” and Master Po any more?  It had a Caucasian actor (David Carradine) playing an Asian hero, so I guess it’s considered racist now.

Never mind.

I need a drink…

1. One more note about last night’s debate...I was listening to NPR’s efforts to spin the debate this morning. A Democratic consultant, who hardly could have been surprised by the question, was asked “Who won?” He paused, stammered and said, unconvincingly, “The Democratic Party?”  Exactly! As conservative wag Stephen Kruiser wrote today,

They don’t want you armed and able to protect yourself.

They don’t want you taking care of your children.

They don’t want you making your own decisions about your healthcare.

They want you to pay more in taxes for the privilege of losing your freedoms.

What’s not to like?

2.  The new book “She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement” reveals more details about the efforts by lawyers David Boies and Lisa Bloom (the victims advocate and daughter of Gloria Allred) to protect Harvey Weinstein from having his predations on women revealed. In one memorable memo the book shows to the world, Lisa Bloom wrote to Weinstein in December 2016 laying out a multistep playbook on how to intimidate accusers or represent them as liars. Regarding actress Rose McGowan, who claims to have been raped by Weinstein and who has since become a visible activist regarding his conduct and that of other Hollywood figures, Bloom wrote,

“I feel equipped to help you against the Roses of the world, because I have represented so many of them….We can place an article re her becoming increasingly unglued, so that when someone Googles her this is what pops up and she’s discredited.”

Not surprisingly, McGowan is furious, and said of Bloom, “Her email is staggering. Staggering! …This woman should never work again. Lisa Bloom should be disbarred. So should David Boies.” Continue reading →

Ethics Observations On The ABC Democratic Candidates Debate

/ Jack Marshall / 28 Comments

1, The overwhelming impression one—well, this one—got from last night’s depressing Democratic candidates debate is that the United States of America has somehow painted itself into a corner where one of the worst characters in American political history is nonetheless the shaky human firewall against a calculated overthrow of the American experiment by a sickening conspiracy of power-seeking demagogues, democracy-defacing socialists , individual liberties-rejecting totalitarians, and, of course, and a news media that self-righteously views itself as the propaganda agent for all of these.  In the immortal words of Chester A. Riley,  wing riveter at the fictional Cunningham Aircraft plant in California, “What a revoltin’ development this is!”

But here we are.

2. Symbolic of the plight was the sight of long-time Clintonista and Democratic Party operative George Stephanopoulos  sitting in the debate moderator’s chair last night. No one who is aware of the ABC host of the news division’s morning and Sunday  show could possibly view his presence as anything but an overlay of bias and a guarantee of soft-ball questions and general favoritism. The problem is that many, perhaps most, of the target audience of last night’s fiasco are not aware of it. Remember 2015, when the GOP hopefuls subjected themselves to the sneering contempt of such leftist moderators as CNBC’s  panel of Becky Quick, John Harwood, and Carl Quintanilla? Their questions and interjections from the moderators were, as I observed at the time, ” so hostile, so disrespectful, so obviously concocted from a biased perspective,” that there was criticism from all sides of the political spectrum. Nonetheless, at least the Republicans were challenged, and they knew that partisan opponents facing them were not going to countenance flagrant misinformation. This is why the DNC’s cowardly decision to freeze Fox News out of the debates was such a transparent effort to avoid fair vetting of the candidates, fair meaning in this case, something more challenging than boot-licking submissiveness. “It was a great debate. I think we learned a lot tonight,” the lackey enthused after it was all over. Did anyone really think that was a great debate? That kind of self-evident spin is supposed to be reserved for people like Tom Perez. Continue reading →

Addendum: To “The Euthanasia Slippery Slope: A Case Study,” Hypothetical And Poll

/ Jack Marshall / 51 Comments

The Euthanasia Slippery Slope: A Case Study, this morning’s post, has attracted a wider range of opinion than I expected. I considered attaching a poll to the original post; now I’m going to go a step farther, and base that poll on a hypothetical of the kind that I use in my legal ethics seminars.

Speaking of those, on Tuesday, September 17, in Richmond, VA, and Wednesday, September 18, in Fairfax, VA, I’ll be presenting  “The Greatest Legal Ethics Seminar Ever Taught!” for three hours of legal ethics CLE credit to Virginia lawyers and others. The title reflects, other than my own warped sense of humor (“The Greatest Story Ever Told” is one of the worst movies I’ve ever seen), the fact that the legal ethics hypotheticals being discussed cover what I have found to be many of the most contentious, fascinating legal ethics issues extant over 20 years of doing these things. Moreover, I am being joined by my friend and colleague, John May, who approached these issues from the perspective of a practical litigator as well as one who often defends lawyers accused of ethical improprieties. He’s also one combative and clever pain in the ass who loves disagreeing with me, so I recommend bringing popcorn. The details are here.

Now here’s your hypothetical:

Continue reading →

Morning Ethics Warm-Up: 9/12/2019: It’s The Ethics Derby, With The Obamas In The Lead, Ms. Monopoly Close Behind, Apple Coming Up On the Rail, And The News Media And The Democratic Party Bringing Up The Rear!

/ Jack Marshall / 19 Comments

Post time!

I’m stunned at how little publicity and outrage has been generated by the just-revealed Triple Crown scandal. I’m hoping it’s because thoroughbred horse racing is such a marginal sport today that nobody cares about it—quite a fall for “the sport of kings,” which was once among the three most popular sports in the U.S. I fear it is because the public has become so cynical about sports generally that ethical breaches don’t surprise of bother them much.

1. Speaking of ethics insanity in sports: A female teen  champion swimmer for Anchorage’s Dimond High School easily won the 100-yard freestyle during last week’s night’s meet against a rival school. Then she learned that she had been disqualified, because her swimsuit was exposing too much of her buttocks, according to an official. The swimmer was wearing the exact same suit as her team mates and her competition; the problem was, apparently, her body, which was “curvier” than the typical female swimmer, perhaps because she was a mixed-race competitor in a sport that is almost exclusively white.

Another official who was working during the meet, told the Anchorage Daily News that one of the female  refs complained that the bottom of the girl’s suit “was so far up I could see butt cheek touching butt cheek.’’

The Horror.

From the Washington Post: “Anchorage School District officials  have announced that they  reviewed the incident and concluded that the teenager “was targeted based solely on how a standard, school-issued uniform happened to fit the shape of her body,” and that the referee’s decision was ‘heavy-handed and unnecessary.’ The district is appealing to the Alaska School Activities Association, asking to reverse the swimmer’s disqualification, return all points to her team, and revoke certification for the referee who made the call. The district is also seeking to suspend and eventually revise the guidelines in place for appropriate swimsuit coverage, which officials said were ambiguous and left room for biased interpretation.”

They should also ask that rudimentary ethics alarms be required of all swimming judges.

2. There is hope! Two recent polls—stipulated: any poll is likely to be misleading and worthless–suggest that Ethics Alarms hasn’t been entirely futile in its—to some—excessive coverage of what I believe to be the two most important ethics stories on our times: the Democratic Party’s rejection of its duty to uphold American institutions and respect elections, and the corruption of American journalism. Oh, I have no illusions that this oft-censored little blog has contributed much to enlightening the public, but I’m satisfied that it contributes in a small way to the zeitgeist, which is vital if the nation is going to survive the assault on its values.

The first study comes from the PR agency, Bospar, in collaboration with Propeller Insights. Its survey of 1,010 American adults found that more than 95% are troubled by the current state of the news media, with 53% citing “reports on fake news,” 49% citing “reporting gossip,” and 48% citing “lying spokespeople,” as concerns. 67% believe ethics in journalism will be worse during the 2020 presidential campaign–I’d say that’s a safe bet. I’m amazed that anyone wouldn’t expect this.

Oddly, almost all of my Facebook friends reside in that less than 5% who feel the news media is as pure as the driven snow, and anyone who impugn its objectivity is a Nazi, racist, moronic Trump supporter.

The second comes from the more reliable Pew Foundation. Pew data from last year showed that most Americans had a favorable opinion of the Democratic party, and a negative view of the GOP. 53 % of respondents last September said that they viewed the Democratic party favorably, compared to 42% who said they viewed it unfavorably. In the same survey, 43% had a favorable view of the Republican Party compared to 52% who had an unfavorable view. This September’s Pew survey shows that most Americans view both the Democratic and Republican parties with disfavor, and in exactly equal proportions: 45 % positive,  52%  negative.

Good. The Democratic Party has been behaving crazy and irresponsibly for more than three years, a I’ve tried to document; they deserve this result. Continue reading →