Law & Law Enforcement

And The Flag Is Still There: Goodbye To Plan K!

/ Jack Marshall / 51 Comments

[Reps. Alexandria Ocasio-Cortez (N.Y.), Ilhan Omar (Minn.), Ayanna Pressley (Mass.) and Rashida Tlaib (Mich.) probably hate that unrestrained video, and Megan Rapinoe would walk out on it.  And that, in the end, is why they and their supporters are going to lose]

From the The Complete Presidential Impeachment or Removal Plans A-Q (Updated 7/18/2019) below:

Plan K: Election law violations in pay-offs of old sex-partners

Now from the New York Times today:

“Federal prosecutors signaled in a court document released on Thursday that it was unlikely they would file additional charges in the hush-money investigation…. that ensnared members of Donald J. Trump’s inner circle and threatened to derail his presidency. In the document, the prosecutors said they had ‘effectively concluded’ their inquiry, which centered on payments made during the 2016 presidential campaign to buy the silence of two women who said they had had affairs with Mr. Trump…. The president’s former lawyer, Michael D. Cohen, was convicted in the case. He has said he helped arrange the hush money at the direction of Mr. Trump, and prosecutors have repeated the accusation in court papers. Mr. Cohen is serving a three-year prison sentence.”

It’s fun watching the anti-Trump media try to spin this. Here’s AOL:

“The FBI believed then-candidate Donald Trump was closely involved in a scheme to hide hush-money payments to adult film star Stormy Daniels, who claimed an affair with Trump, court documents from the closed campaign finance case against former Trump-fixer Michael Cohen show.

The documents, released Thursday, describe a “series of calls, text messages, and emails” between Cohen, Trump, Trump campaign aide Hope Hicks, Keith Davidson — an attorney for the woman, porn star Stormy Daniels — and David Pecker, an executive of the company that published the National Enquirer.”

Oooh, “scheme.” That sounds sinister and illegal, but paying off old adultery-enabling sex partners who are threatening to embarrass you when you’re a public figure is business as usual for people like Donald Trump (and Jack Kennedy, and Bill Clinton, and so on) and it isn’t illegal. Nor is lying about whether such relationships ever existed, unless it’s under oath or to investigators.

The reason charges aren’t going anywhere is because the theory that this was an election law violation, or that if it was, it was sufficiently dire to be impeachable, was always a ridiculous stretch. Michael Cohen, who promised to be the worst and most unreliable witness of any lawyer in history if this ever reached trial, had been persuaded to plead guilty to a non-crime as part of his plea deal, purely to assist the quixotic effort to make the politically motivated case that an individual running for President doing exactly the same thing that he would have done had he not been running for President was violating federal elections laws despite the fact that no law prohibits that act. Continue reading →

Morning Ethics Warm-up, 7/18/2019: Heading Toward An America Where “America” Is Banned, Where It’s Illegal To Call An Illegal Illegal, Where Judge’s Say “Good Work!” To Felons, And Where Illiterate Celebrities Are “Influencers”

/ Jack Marshall / 37 Comments

Aiiii!

Everything is seemingly spinning out of control!

1. For example, this stupid controversy, and surprisingly, it involves the Kardashian family. Kylie Jenner, Kim’s half-sister, is, as you may know, a “social media influencer,” which means companies pay her millions to use Instagram to promote their brands or products to the mouth-breathing idiots who follow this fatuous and useless celebrity.

Kylie recently issued a post featuring this photo of herself nude in a huge straw hat…

 

which rankled another “influencer,” Amanda Ensing—how can someone get paid to influence people when I’ve never heard of them?— who accused Jenner of stealing her pose.  Ensling has more than one million followers on both YouTube and Instagram, where she posts her outfits, makeup looks, travel experiences, and hairstyles, and  had previously appeared on Instagram like this…

She implied that Jenner had engaged inInstagram pose plagiarism, or something. (There’s no such thing.) The ever-articulate half-Kardashian lashed back, in words reminiscent of Dryden or Wilde in high form,

“from the words of Kim K ur not on my mood board but i did get my inspo off Pinterest”

This exchange justified breathless accounts in People, The Daily Beast, Cosmo, E!, Us, and dozens of other websites, as well as celebrity cable shows, spreading the false impression that what these semi-literate narcissists  say or do matters, thus increasing their ability to make our young trivial and even dumber that our schools make them.

Apparently Pierre Auguste Renoir isn’t active on social media, or he might have complained to both “influencers.”

2. From Minnesota, a very different kind of stupid: In an epic example of woke virtue-signaling because Nationalism Bad,  the city council for St. Louis Park in Minnesota decided to end the practice of reciting the Pledge of Allegiance at its meetings—you know,  to be more “inclusive,” which means to pander to members who don’t care that much for the United Sates of America.  Then they were shocked to discover that a very vocal majority of constituents found the move offensive, so the city council members did a complete 180,  said, “Never mind!” and reversed themselves unanimously,though complaining bitterly and implying that Deplorables made them do it. Integrity! Principle over expediency! Continue reading →

Animal Treatment Ethics, Stowaway Raccoon Division: Should A Lawyer Face Professional Sanctions For This?

/ Jack Marshall / 24 Comments

Controversial Cruelty to Animals Day at Ethics Alarms continues (I don’t plan these things) with this legal ethics story out of Florida. The video above is at the center of it.

Florida disciplinary authorities have opened an investigation into the professional fitness of a lawyer who forced a stowaway  racoon off of his boat a long way from shore,  and thought it was all amusing enough to post a video of the incident on Facebook. The bar’s assumption is that the animal drowned.  The lawyer is now subject to prosecution for a violation of Florida’s wildlife laws.

In Florida, as in every other U.S. jurisdiction, one of the kinds of unethical conduct that can result in bar discipline is committing “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects,”  as stated by  Rule 8.4 (b) of the Florida Rules of Professional Conduct . Should the nautical lawyer’s conduct  qualify?

You may recall a far more egregious case of animal cruelty by a lawyer discussed here, where I questioned if a psychopath lawyer’s fatal attack on his girlfriend’s dog Snoopy really tells us anything about his trustworthiness as a lawyer. I wrote then,

Emotionally, I have no problem with seeing an animal abuser kicked out of my profession, but I don’t understand what values are being applied. Is it the commission of a crime? Most lawyer crimes don’t result in disbarment, if they don’t involve lying, cheating or stealing. …There is no basis on which to conclude that [Snoppy’s killer]  isn’t competent, zealous and trustworthy—just keep him away from pets.

Now, you may well ask, “Isn’t this at least “moral turpitude?” That’s the character flaw that will keep applicants for bar membership from getting a license due to character deficiency. There are two points related to that. First, moral turpitude might keep you out of the law at the outset, but it is not one of the official no-nos that will get you kicked out of it one you are a practicing lawyer.  The legal  definition of moral turpitude is an act or behavior that gravely violates the sentiment or accepted standard of the community. Brutalizing an animal would certainly qualify. The ABA, however, greatly narrowed the definition as it was applicable to legal discipline:

The 1983 Model Code (periodically amended by the ABA House of Delegates over the last 32 years) rejected the prohibition against “illegal conduct involving moral turpitude.” The ABA’s reason, which it included in a Comment to its Rule 8.4, was quite simple: “Moral turpitude,” the ABA advised, is a “concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” The American Law Institute’s Restatement of the Law Governing Lawyers § 5 (Third) (ALI 2000), agreed. It also concluded that “moral turpitude” is vague and may lead to discriminatory or otherwise inappropriate applications.”

This looks like an Ick Factor case to me. The abuse of poor Snoopy is so viscerally repulsive that the bar and the courts can’t keep their ethical priorities in order. It is also, as particularly ugly discipline cases often are, a matter of public relations and self-preservation for the legal profession. The bar association knows that not banning a lawyer like Pastor—one hopes there aren’t many–signals to the public that the bar welcomes brilliant advocates who may be monsters in their spare time. That is a dark and dangerous road the profession would rather avoid.

The lawyer in the Florida video also has some defenses the poodle-stomper did not.  Raccoons are wild animals, and cute as the are, they also bite. I wouldn’t want to be trapped on a boat in middle of the ocean with one, though I wouldn’t throw the critter overboard either, unless it was me or him. (My father had a home movie of me jumping out of a canoe and swimming to a lake’s shore when I saw a large spider in the vessel. Of course, I was only 15. All right, I was 26….) The raccoon may have also been a better swimmer than everyone assumes: unlike in the case of poor Snoopy, the lawyer wasn’t trying to kill the animal, just get it off the boat.

I do not, however, second the opinion of Law professor Dane Ciolino, writing on his Louisiana Legal Ethics blog, who says in discussing the case, “A Maryland lawyer was suspended for microwaving a cat. But a racoon? I think not.”

Wait—is the professor really saying that microwaving a live raccoon would not justify bar sanctions, but a cooking a cat does? That’s animal bigotry, but it is consistent with what I detected in the Snoopy case. If that lawyer had stomped to death a raccoon that wandered into the apartment, I doubt that he would have been disciplined.

Yet animal cruelty is animal cruelty. If gratuitously killing a dog or a cat shows that a lawyer is unfit to practice, so does unnecessarily killing a raccoon.


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Pop Music Ethics History: “My Sweet Lord” And “He’s So Fine” [UPDATED]

/ Jack Marshall / 33 Comments

The ABA Journal finally provided a brief, clear, fascinating account of exactly how it was that George Harrison was found to have  “unintentionally” plagiarized  the Chiffons’ “He’s So Fine” when he wrote his biggest hit single as a solo artist, “My Sweet Lord.”

It also clarifies what I always suspected: when courts have to decide the question of when a song is too much “like” another, anything can happen.

George Harrison’s first solo album “All Things Must Pass” was released  in 1970, the same year the Beatles officially broke up, with “My Sweet Lord” the triple album’ s signature hit. I remember the first time I heard the song, and thinking, “Wow, that reminds me a lot of ‘He’s So Fine’!”  Others thought so as well, including  Bright Tunes Music Corp., which held the copyright on the Chiffons’ 1963 classic. It sued Harrison’s publishing company, Harrisongs Music Ltd., for copyright infringement.

As  litigation proceeded, Harrison admitted in court filings  that he was familiar with “He’s So Fine”—how could he not be?—but denied that he had used it to create “My Sweet Lord.”  At trial, Harrison  brought his guitar to  the witness stand to demonstrate how  he had composed “My Sweet Lord.” This, onlookers agreed,  was sufficiently convincing to persuade the judge that George was not guilty of intentional infringement. Continue reading →

Prosecutorial Ethics: Not Charging The Police In The Eric Garner Case Is The Right Ethical Decision…

/ Jack Marshall / 8 Comments

…and trying any of the officers involved would be unethical.

Naturally, Eric Garner’s family immediately is attacking  the decision of the Justice Department today not to bring federal charges against  the New York police officers whose ugly and violent arrest of Eric Garner in 2014 led to his death. This incident came in the midst of several high-profile police shootings following the triggering Trayvon Martin killing, and led directly to the emergence of Black Lives Matters as well as launching one of several catch phrases connected with the movement, “I can’t breath.”

The Department of Justice took a long time reviewing the incident and the evidence, and could not determine that Officer Daniel Pantaleo willfully committed misconduct, an “essential element necessary to bring federal charges,” a senior department official told reporters at a briefing today. Considering all the elements of the  crime required to be proven under the law, the DOJ official said, the conclusion was that  the police conduct did not “fit within the statute.”

In deciding not to bring charges, U.S. Attorney General Bill Barr sided with federal prosecutors in Brooklyn. The  Justice’s Civil Rights Division had favored bringing charges.

The main problem facing the Justice Department and the New York prosecutors was that a conviction would be unlikely, making a prosecution more of a show trial than a real one, much like the George Zimmerman trial for allegedly murdering Martin. That trial was brought unethically to slake activist thirst for vengeance against Martin’s shooter, despite the glaring  evidence indicating self-defense. Prosecutors may not use the process itself to punish citizens. If a trial can’t be won, or if the justification for charges are dubious, then it is professional misconduct to bring them.

Were police negligent and reckless in using such aggressive measures to bring down a suspect who was resisting arrest? Absolutely, and this was addressed, as it should have been, in a civil trial. (Garner’s family was awarded 4 million dollars from the city.) Did the cops intend to kill Garner? It takes real anti-police bias to conclude that. The video shows a huge, morbidly obese man resisting arrest by a group of much smaller officers, who pretty evidently over-reacted. Although the ME attributed Garner’s death to “compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police,” the defense in a criminal trial will have no trouble finding persuasive expert testimony to the effect that what ultimately killed Eric Garner was his weight and poor health. Continue reading →

From The Ethics Alarms Archives: “Yes, Ethics Dunce Madonna Indeed Engaged in Sexual Assault On Stage In Australia”

/ Jack Marshall / 18 Comments

Here’s an Ethics Alarms post about a story from 2016 that takes on some new elements when considered in light of #MeToo and the Harvey Weinstein Ethics Train Wreck. I’m wondering if Madonna would do this today.

Let’s review the players, shall we?

This is Josephine Georgiou, Isn’t she pretty? She was 17 in 2016.

This is Madonna, performing on stage in Australia. during her2016 concert tour.

She was and is over-the -hill and  has to be progressively more outrageous  to try to justify her concert ticket prices. During the 2016 tour, she was repeatedly late, suspected of being drunk on stage, and generally erratic. Her enabling supporters attributed this to a messy divorce. Of course, for a professional, that is no excuse: if you can’t do the job, then don’t charge people for you to do it.

Here is Josephine with a friend before they attended Madonna’s concert in Brisbane. Note Josephine’s outfit.

Note the nipple rings.

Forget the friend, and no, I have no clue as to what Josephine was holding. Maybe they have very small flies in Australia….

Now here is Josephine with her Mom, Toni, who also was at the concert.

More about her later. OK, I think we’re ready now. Fasten your seat belts, it going to be a bumpy trip down memory lane. Here’s “Yes, Ethics Dunce Madonna Indeed Engaged in Sexual Assault On Stage In Australia” from March 19, 2016…
Continue reading →

Sunday Ethics Warm-Up, 7/14/2019: The “Yikes!” Edition.

/ Jack Marshall / 24 Comments

Good morning!

1. Yikes. The New Republic is routinely irresponsible and disgusting these days, but may have set a new low—I can’t say for sure, because I only intermittently read the rag—with an ugly, homophobic rant by Dale Peck about Pete Buttigieg. So great was the outcry that the far left magazine pulled the piece, something it would not do and has not done when it has savaged a conservative or Republican, though not over sexual orientation, just horrible things like being male, white, or wanting to enforce laws. Here’s an excerpt from what remains on the web…Peck is himself gay, interestingly:

The only thing that distinguishes the mayor of South Bend from all those other well-educated reasonably intelligent white dudes who wanna be president is what he does with his dick (and possibly his ass, although I get a definite top-by-default vibe from him, which is to say that I bet he thinks about getting fucked but he’s too uptight to do it). So let’s dish the dish, homos….He’s been out for, what, all of four years, and if I understand the narrative, he married the first guy he dated. And we all know what happens when gay people don’t get a real adolescence because they spent theirs in the closet: they go through it after they come out. And because they’re adults with their own incomes and no parents to rein them in they do it on steroids (often literally)….the last thing I want in the White House is a gay man staring down 40 who suddenly realizes he didn’t get to have all the fun his straight peers did when they were teenagers.

I’m not saying I don’t want him to shave his chest or do Molly or try being the lucky Pierre (the timing’s trickier than it looks, but it can be fun when you work it out). These are rites of passage for a lot of gay men, and it fuels many aspects of gay culture. But like I said, I don’t want it in the White House.

I want a man whose mind is on his job, not what could have been–or what he thinks he can still get away with.

I know I keep asking this, but how could an editor not have ethics alarms ringing like a seven alarm fire when examining vile material like that?

2. Yikes! I didn’t see this coming...I posted what I thought was a nice, innocuous acknowledgement of the Boston Red Sox management doing something kind for the family of a forgotten walk-on during the team’s legendary 1967 pennant winning season who was inexplicably snubbed over the years. They gave the late Ken Poulsen’s son a 1967 World Series ring in an on-field ceremony before a game last week.

Then I received this in the comments:

I am Kendra Poulsen, Ken’s daughter and first born. I was not informed of this honor and presentation of the pennant ring they gave my brother yesterday. Obviously, I am devastated that me and my son were left out! And Ken had 2 grandsons. My child and my brother’s. The other children were step children from a recent marriage. It all makes me sick! The Sox should be ashamed of themselves. I could care less about the money.

I can’t quite make an ethics call because I can’t answer the threshold “What’s going on here?” query. So far, I’ve alerted a Boston Red Sox sportswriter friend, and that’s all. Was it the team’s obligation to track down the entire Poulsen family for its gesture of contrition? Did the son fail his duty to his sister? Continue reading →

Saturday Ethics Review, 7/13/2019: The Uncomfortable Truth About “The Lion King,” The Green New Deal, Children At the Border, Blackface, And Harvey Weinstein

/ Jack Marshall / 33 Comments

Hi!

Is it unethical for an ethics speaker to drop trow during a program? I think so. It was a situation I narrowly avoided this morning. I am a rather animated speaker, and after I slammed the D.C. ethics rules into the floor to illustrate a point, my effort to retrieve the volume resulted in the rear snap of my galluses pulling loose from the back of my pants. With an unpantsing imminent (and about to be streamed live to hundreds), I asked my moderator to come down from his platform and rescue me by reclipping the devices on, which he did.

Hilarity ensued.

1. “Asshole” ethics. In another episode today, I referred to Harvey Weinstein as an “asshole,” in the context of discussing the multiple David Bois ethics problems in handling the Hollywood mogul’s representation. The exact statement was “Even assholes deserve competent representation.” This came closely after I had mentioned that lawyer incivility was an ethics problem whether there were explicit rules against it or not. One of the attendees in cyber-space texted a query as to whether it was uncivil for me to use the term “asshole.”

I answered that I was reminded of the moment in  “1776” when one of the members of the Continental Congress challenges Thomas Jefferson’s use of the term “tyrant” to describe King George. Is it really necessary, Jefferson is asked, to use such a harsh word? Why resort to an insult? “Because the King is a tyrant,” Tom replies.

I went on to say that I have found that in certain situations, only certain harsh words are sufficiently accurate.  What should I call Harvey, a miscreant? A jerk? No, the man is an asshole, I said. I’m not using the term as an ad hominem attack, but as the most accurate term I can think of for someone who has done the things he has done to so many women while indicating no remorse at all. I do not use the term indiscriminately, and would not use it in certain forums, such as open court. But I do not believe in word taboos, and when the description, however harsh, fits, it is not uncivil to make a Harvey Weinstein wear it.

2. Now, what’s the right word for THIS? In the Washington Post,  Dan Hassler-Forest reflects on the themes of “The Lion King” and asserts that the lions, hyenas, and gazelles are “stand ins for human societal organizations” and that the themes of the movie “incorporates the white supremacist’s worldview.” Hassler-Forest is an author and public speaker on “media franchises, cultural theory, and political economy” who works as assistant professor in the Media Studies department of Utrecht University in the Netherlands. “No matter how you look at it, this is a film that introduces us to a society where the weak have learned to worship at the feet of the strong,” his article asserts. Continue reading →

Acosta-Epstein Scandal Update: Acosta Resigns As Labor Secretary

/ Jack Marshall / 3 Comments

The resignation is effective one week from today. Acosta’s deputy, Pat Pizzella, will become acting Secretary. In the Trump administration, acting secretary is a real growth position, since the appointments to the administration’s top jobs are so uniformly wretched. As with so many other disastrous appointments, Trump, or someone, should have seen this scandal coming before Acosta was nominated..

In confirming reports that he had stepped down, Alexander Acosta said, “I do not think it is right and fair for this administration’s labor department to have Epstein as the focus rather than the incredible economy that we have today.” He said that he called President Trump and “told him that I thought the right thing was to step aside. Because cabinet positions are temporary trusts. It would be selfish for me to stay in this position and continue talking about a case that’s twelve years old rather than about the amazing economy we have right now.”

It was the right move for Acosta whether you believe that he needed to be held accountable for the Jeffrey Epstein fiasco or not. The Democrats are desperately trying to tie Epstein to Trump, and the narrative that Acosta was rewarded for helping a Trump “pal” needed to be squashed. I second the reaction of Ann Althouse, who doubled down on her earlier opinion by re-publishing it  after she heard the news:

“I do think Acosta should resign. When it mattered most, the cries of a wealthy man overwhelmed those of ordinary people. That’s not what belongs in the Labor Department.”

Continue reading →

“Never Mind!”*….And A Few Questions

/ Jack Marshall / 10 Comments

House Democrats on The Committee on Oversight and Reform tweeted the photo above  to promote their investigation into “inhumane treatment” at the border The hearing,  titled “Kids in Cages: Inhumane Treatment at the Border,” is supposed to examine this alleged inhumane treatment—as illustrated by the photo— that members of the committee allegedly witnessed. The photo was intended as a graphic  sample of the “grotesque treatment of children” at the camps under the Trump Administration.

The photo and tweet were quickly sent down the memory hole when Democrats discovered that, not for the first time, they had used an old photo of camps during the Obama Administration.

After deleting the tweet, the Oversight Committee put up a second tweet with a different photo. This photo also turned out to  be from the Obama administration, and  was also deleted.

Notes: Continue reading →