Law & Law Enforcement

Sentencing Ethics: The Perplexing Relevance Of “Acquitted Conduct”

/ Jack Marshall / 14 Comments

Senators Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that if passed and signed into law would  prohibit the use of so-called “acquitted conduct” at sentencing. What is acquitted conduct, you might ask? It is charges for which a defendant has been found not guilty that a sentencing judge nonetheless considers when sentencing that defendant for the crimes the jury says they did commit. This practice give prosecutors a special edge. Knowing that a judge may consider at sentencing every offense the prosecutor charges, a prosecutor can charge a defendant with an offense he knows he can prove beyond a reasonable doubt, and then charge more serious offenses that he probably can’t  prove. Even if jurors only reach a guilty verdict on the charges proved beyond a reasonable doubt, and refuse to convict on other charges, a judge can, and often does takes all the charges into consideration at sentencing.

“If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment,” Grassley said in a statement released this week. “That’s not acceptable and it’s not American.” Under the law he is proposing with Senator Durbin, if a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then sentences you should be able to consider only offense you were found guilty of.

What’s going on here? It is simply that the Federal sentencing rules currently allow a judge to consider crimes he or she believes the defendant is guilty of committing regardless of what the jury decided, just as a judge can take other factors into consideration. In such cases, a judge may use a preponderance of the evidence standard, not the criminal law standard of  beyond a reasonable doubt, to conclude that the jury was wrong and that a sentence should reflect conduct other than what the prosecution was able to prove to the jury’s satisfaction. Continue reading →

Saturday Ethics Warm-Up, 9/28/2019: The Search For Inspiration

/ Jack Marshall / 18 Comments

I need inspiration today…

1. No, this isn’t it…The Idiot Air Traveler. At a certain point, extreme stupidity is unethical. In China, a Xiamen Airlines passenger opened the emergency exit door of the aircraft as the plane was preparing to take off because she  felt the cabin was “too stuffy” and wanted “a breath of fresh air.”  She was arrested, and the incident caused the flight to be delayed an hour. How stupid and ignorant does someone have to be to do this? Wouldn’t you say this is signature significance indicating idiocy? Would you hire someone who did this even once? Allow her to take care of your children? Trust her with sharp objects? Allow her to buy a ticket for another plane trip?

2. Nor this.. New York City intentionally violates the Constitution. It is now against the law in New York City to threaten to call  immigration authorities on someone or refer to them as an “illegal alien” when “motivated by hate.”  A 29-page directive released by City Hall’s Commission on Human Rights announces fines of up to $250,000 per offense for, among other things, “the use of certain language, including ‘illegal alien’ and ‘illegals,’ with the intent to demean, humiliate, or offend a person.”  Mocking people because of their accents or grasp of English is also a crime now in the Big Apple. So is threatening to call ICE.

“In the face of increasingly hostile national rhetoric, we will do everything in our power to make sure our treasured immigrant communities are able to live with dignity and respect, free of harassment and bias,” said Carmelyn Malalis, the agency’s commissioner.

Maybe the whole set of new regulations isn’t unconstitutional, but the ones focused on “hate speech” certainly are. The city is simply declaring its contempt for the First Amendment with this stunt.

3. I guess this is kind of inspiring...When it pays to be trans. The old Saturday Evening Post used to have a feature called “The Perfect Squelch,” regaling its readers with a witty comeback or rejoinder that left an adversary defeated and demoralized. It wouldn’t have printed this one, but I can’t imagine a better example of the genre. This is Faye Kinley… Continue reading →

Morning Ethics Warm-Up, 9/27/2019: Five Indefensible Ethics Breaches, In Approximate Order Of Harm Done [Corrected]

/ Jack Marshall / 40 Comments

And it’s a beautiful day…

1. Probably the last Boston Red Sox baseball ethics note of the 2019 season…In yesterdays’ meaningless afternoon game with the Texas Rangers, the Sox, who will finish the season an incredible 24 wins or more worse than last season’s championship team despite essentially the same squad and no major injuries, faced starter Mike Minor, who was seeking to end his season with 200 strikeouts, a milestone that might earn the free-agent-to-be an extra million or so on the open market this winter.

Minor entered his last start of the season at 191 strikeouts, and began the top of the ninth inning with 199 and a solid lead. Sox catcher Sandy León flied out to left field for the first out, bringing up sub-.200 hitter Chris Owings.

[Notice of Correction: Apologies to Chris Owings fans, if there are any, for originally misstating that Owings was a minor league call-up. In fact, he had been a journeyman infielder with the NL Diamondbacks. for six seasons until landing in the AL this season.Thanks to Other Bill for setting me straight. ]

With a 1-1 count, Owings popped up a pitch  halfway down the first base line in foul territory. Rangers first baseman Ronald Guzmán appeared to let it drop, trading out #2 for strike #2, and thus giving Minor a shot at his 200th strikeout. Minor got it when routinely incompetent home plate umpire CB Bucknor called strike three on a ball well out of the strike zone.

Manipulating the game’s results so a player can fatten his stats is unethical and hurts the integrity of the game. Guzmán  and the Rangers should be fined by MLB.

2. Our unprofessional, biased and untrustworthy public schools. Watson B. Duncan Middle School in Palm Beach Gardens, Florida is investigating a teacher who included this question on a test:

Continue reading →

The Sequel To The “It’s OK To Be White” Stickers: “Islam Is Right About Women” Flyers

/ Jack Marshall / 25 Comments

In Winchester, Massachusetts (right next to my old home town of Arlington!)  flyers reading “Islam is RIGHT About Women” suddenly appeared around the town, fastened to trees, utility polls and street signs in the familiar manner of those “lost cat” notices.

An “alarmed” woman brought two flyers to the Winchester Police Department, and officers subsequently found eight more, including one that was posted outside of an elementary school. The flyer presented multiple dilemmas. Police said the signs were not threatening and considered free speech. But because they were placed on town property, the flyers technically violated town ordinances. Yet those lost cat flyers were always allowed to remain.

Some residents were adamant that the signs should come down: one who spoke to a local TV station, Jim Leary, said, “Putting signs up that make people feel uncomfortable is unfortunate, particularly in this time and age.”

Really? Sounds like you’re not too fond of free speech, Jim!

The police took the flyers down. Constitutional law professor Eugene Volokh wrote, citing Members of the City Council v. Taxpayers for Vincent (1984), that the content of the flyers’ message  is constitutionally protected, but that the city could take down the ones that violated town law  so long as it wasn’t discriminating based on the viewpoint of the signs.  But of course it was, since the lost cat flyers were never taken down.

What’s going on here? The Professor played dumb, writing, Continue reading →

Why American Colleges Are Increasingly A Waste Of Money, Time, And Minds: A Case Study From American University

/ Jack Marshall / 35 Comments

American University in Washington D.C. (Full disclosure: I once taught legal ethics at the law school there) employs Ibram X. Kendi as a history prof and  Director of the Antiracist Research & Policy Center. He writes, and thus advocates, utter nonsense like this, from his recent opinion piece  in Politico:

To fix the original sin of racism, Americans should pass an anti-racist amendment to the U.S. Constitution that enshrines two guiding anti-racist principals: Racial inequity is evidence of racist policy and the different racial groups are equals. The amendment would make unconstitutional racial inequity over a certain threshold, as well as racist ideas by public officials (with “racist ideas” and “public official” clearly defined). It would establish and permanently fund the Department of Anti-racism (DOA) comprised of formally trained experts on racism and no political appointees. The DOA would be responsible for preclearing all local, state and federal public policies to ensure they won’t yield racial inequity, monitor those policies, investigate private racist policies when racial inequity surfaces, and monitor public officials for expressions of racist ideas. The DOA would be empowered with disciplinary tools to wield over and against policymakers and public officials who do not voluntarily change their racist policy and ideas.

Continue reading →

Still MORE From The Ethics Alarms” Res Ipsa Loquitur” Files: That “Whistleblower” Complaint

/ Jack Marshall / 21 Comments

Nnnnope. not this either.

Here’s all you have to read, in my view:

In the course of my official duties, I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election. This interference includes, among other things, pressuring a foreign country to investigate one of the President’s main domestic political rival ls. The President’s personal lawyer, Mr. Rudolph Giuliani, is a central figure in this effort. Attorney General Barr appears to be involved as well.

  • Over the past four months, more than half a dozen S. officials have informed me of various facts related to this effort. The information provided herein was relayed to me in the course of official interagency business. It is routine for U.S. officials with responsibility for a particular regional or functional portfolio to share such information with one another in order to inform policymaking and analysis.
  • I was not a direct witness to most of the events described. However, I found  my colleagues’ accounts of these events to be credible because, in almost all cases, multiple officials recounted fact patterns that were consistent with one another. In  addition,  a variety of information consistent with these private accounts has been reported.

Amazing. Continue reading →

Just To Show That Some Judges Get It Right…A Campus Speech Decision From The Sixth Circuit

/ Jack Marshall / 6 Comments

Judges have been taking an ethics  bashing here recently, so I feel it’s only fair to report that the three-member U.S. Court of Appeals for the Sixth Circuit, in a 2-to-1 decision, determined that the University of Michigan’ speech police, known there as its Bias Response Team, chilled free speech on campus and thus violates the First Amendment.  The Team’s function is to investigate incidents reported by students that are deemed racist, sexist, hostile to LGBTQ students or otherwise “offensive” to the right groups of people. For example, if I were a student there, the creation of such an entity would be profoundly offensive to me.  That presumably wouldn’t matter.

Speech First, a Washington, D.C.-based civil liberties watchdog, sued Michigan last year, seeking an injunction to halt the activities of the BRT. The lawsuit argued that the Bias Response Team is illegal because it could potentially deter students from making statements or engaging in conduct that some on campus might find offensive but are still protected under the First Amendment. The university’s definitions of “harassment” and “bullying” were ominously broad, though Michigan did refine them after the suit was filed. The looming presence of a speech and conduct response team that could be focused on a non-conforming student by a single complaint could reasonably be expected to make students hesitate to express themselves.

Ya think? Nonetheless, a U.S. District Court judge initially denied the injunction last year. [Note: Here I have deleted a series of comments about the agenda and political affiliation of this judge and those who reason like him. I am trying to practice more self-restraint, today anyway.] Continue reading →

Ethics Lunch, 9/24/2019: Big Hairy Men! Teen Rants! Legalized Theft! Insulting The Poor With Kindness!

/ Jack Marshall / 33 Comments

 

Yum!

Or rather, “yecchhh!”

1.  Ben Carson doesn’t think women’s shelters should admit men identifying as women. Obviously, he must be destroyed. Has there ever been a tiny minority that has triggered so many gotchas and excessive controversies like trans citizens?

Let me stipulate that Ben Carson has no business being Secretary of HUD, as he is completely unqualified and possessed of narrow brilliance in an unrelated area and crippling dufus-ness in all others, so this goes in the “Stop Making Me Defend Ben Carson” files.

Nonetheless, the current outrage over remarks he made in a closed-door meeting with roughly 50 HUD staffers at the agency’s San Francisco office are contrived, and blatant virtue-signaling to the hyper-sensitive Democratic base.

Let me also stipulate that Carson is an idiot for not being able to figure out that in any group of San Francisco residents there would be several just looking for a “Ben Carson is an anti-trans bigot” smoking gun.

Carson wrote in an all-staff email that he

“…made reference to the fact that I had heard from many women’s groups about the difficulty they were having with women’s shelters because sometimes men would claim to be women, and that HUD’s policy required the shelter to accept—without question—the word of whoever came in, regardless of what their manifested physical characteristics appeared to be.This made many of the women feel unsafe, and one of the groups described a situation to me in which ‘big hairy men’ would come in and have to be accepted into the women’s shelter even though it made the women in the facility very uncomfortable,. My point was that we have to permit policies that take into consideration the rights of everybody, including those women.”

This was relayed to the media by a few enraged staffers as Carson referring to trans individuals as “big hairy men,” as well as representing insufficiently supportive sentiments towards the transgender community. “The sentiment conveyed was these were not women, and they should not be housed in single-sex shelters — like we shouldn’t force people to accept transgender people in this context because it makes other people uncomfortable,” one staffer told the Washington Post.

To the contrary, what Carson was referencing  is a legitimate concern. Having recently been served at McDonalds by someone who certainly appeared to be a big hairy man wearing a beard, a woman’s wig and a bra, I understand the problem, and it is a problem—not at McDonalds, but surely in a women’s shelter.  Because Carson acknowledged reality,  Julián Castro, a former HUD secretary and a 2020 Democratic candidate for President, said Carson’s comments “normalize violence” against transgender people. Elizabeth Warren and other Democrats piled on.

2. Immunity again, bad judges again, KABOOM! again. Where do these judges come from?

The Fresno Police Department carried out a raid on Micah Jessop and Brittan Ashjian, who were suspected of operating illegal gambling machines, though no charges were ever brought. After the search, officers provided both men with a ledger stating that the police had seized $50,000. Jessop and Ashjian allege that the officers really took $151,380 in cash and $125,000 in rare coins, pocketing $226,380 in what was outright robbery.

Are you ready? Continue reading →

Directed Verdict Ethics In The The Movies: “Tom Horn” And “To Kill A Mockingbird”

/ Jack Marshall / 4 Comments

Once again, as I watched the film version of “To Kill A Mockingbird” for the 50th time, I was bothered by the fact that Atticus never asked for a directed verdict, and the kindly, seemingly fair-minded judge never declared one.

A directed verdict is also known as a judgment as a matter of law or JMOL. It means that one side or the other has failed to meet a minimum burden of proof, and is usually declared by a judge  after is a motion made by a party, during trial, claiming the opposing party has presented insufficient evidence to reasonably support its case.  A directed verdict  is similar to judgment on the pleadings and summary judgment. Judgment on the pleadings is  made after pleadings and before discovery; summary judgment occurs after discovery but before trial.

A directed verdict occurs during the trial, and a judge can also render one spontaneously, without a motion. The motion can even  be made after a verdict is returned by a jury, where such a motion is technically for a “renewed” directed verdict, but commonly referred to as judgment notwithstanding the verdict.  In a civil trial, a party must have moved for a directed verdict before the jury reports out its decision. In a criminal trial, as in the fictional Tom Robinson case, there is no such requirement. The court may set aside a guilty verdict and enter an acquittal in the interests of justice.  A criminal defendant is not required to move for a judgment of acquittal before the court submits the case to the jury for the verdict to be overturned. A verdict of not guilty can never be overturned.

In “To Kill A Mockingbird,” black defendant Tom Robinson is convicted of rape despite the primary prosecution witness, the alleged victim, contradicting her own testimony at several points, and despite strong evidence that the beating she claimed was part of the sexual assault was shown to be delivered by a right-handed man—like her spectacularly vicious and creepy father—when the defendant couldn’t use his right hand at all. Atticus Finch never moves for a directed verdict, and the judge never declares one, though he presides over the fiasco of a trial with a disgusted look throughout. Continue reading →

The Judicial Persecution Of Jonathan Vanderhagen

/ Jack Marshall / 16 Comments

It began when Jonathan Vanderhagen petitioned Macomb County (Michigan) Circuit Court Judge Rachel Rancilio for sole custody of his 2-year-old son, Killian, arguing that Killian’s biological mother was unfit to be his son’s  guardian. Judge Rancilio disagreed and the child’s mother retained custody. Not long after the decision,  Killian was dead. Since his son’s death in 2017, Vanderhagen has harshly criticized the Rancilio’s custody ruling on Facebook. 

As a result, he was arrested and charged with a malicious use of telecommunication services , which includes using a telecommunication service with the intention of terrorizing, intimidating, threatening, or harassing someone, in this case, the judge. From Reason:

The case report filled out by Sgt. Jason Conklin of the Macomb County Sheriff’s Office notes that Rancilio was made aware of Vanderhagen’s posts, several of which included screenshots of her own Facebook page and pins on Pinterest. The screenshots are accompanied by captions promising to expose the corruption of the court system and calling Rancilio and Mary Duross, a 14-year veteran Friend of the Court who was involved in the custody case, “shady.”  “At no point does [Vanderhagen] threaten harm or violence towards Rancilio or Duross,” Conklin wrote in the case report.

Apparently some of the “threat” claim comes from the meme above and others like it that Vanderhagen—talented!—has created and posted on Facebook. That shovel! Scary! The caption says, “Dada back to digging [and] you best believe [I’m] gonna dig up all the skeletons in this court’s closet.” “I won’t stop till changes are made, people are held accountable, careers are ended, & these kids get the justice they deserve,” he wrote in another one of his “threatening” Facebook posts.

What’s going on here?

I don’t think its a tough question: what’s going on is a concerted effort  by some Michigan judges of dubious skills and character to take vengeance on a citizen who hasn’t been willing to grovel at the the feet of the Robed Ones. Judges are like that all too often, but this is an unusually ugly example that begs for a serious reckoning with Lady Justice—for the judges. Continue reading →