Law & Law Enforcement

Saturday Ethics Warm-Up, 3/23/2019: Hypocrisy, Rationalizations, Spin, And Things Your Facebook Friends Will Hate To Pieces

/ Jack Marshall / 18 Comments

Good Morning!

Doesn’t Barbra sing beautifully? Does knowing she’s ethically dead inside ruin her singing for you? (see #2)

1.  How arrogant and incompetent is this? UNBELIEVABLY arrogant and incompetent. Apparently Jared Kushner and the President’s daughter, Kushner’s wife, have been using private email accounts for official business. It’s against the law. it’s absurdly hypocritical, after the (deserved) criticism the President leveled against Hillary Clinton for her private server shenanigans. The Justice Department should prosecute both of them, and if the President had anyone else competent that he could trust as a close advisor—he fear he doesn’t—he should fire them both.

2. Wow! Barbra rationalizes sexual child abuse! Will this mean that Babs will no longer be welcome at Democrat fundraisers? Doubtful. Progressive never met a double standard they wouldn’t use.

Here is what the singing icon said to the The Times about Michael Jackson’s recent accusers (via documentary and lawsuits), Wade Robson and James Safechuck, and hold on to your heads:

“His sexual needs were his sexual needs, coming from whatever childhood he has or whatever DNA he has. You can say ‘molested,’ but those children[ now grown-up Robson and Safechuck] as you heard, say they were thrilled to be there. They both married and they both have children, so it didn’t kill them.”

Should I rename the infamous Rationalization #22. The Comparative Virtue Excuse: “There are worse things” after the Funny Girl? Her statement is a perfect example: a child being raped by a grown man isn’t a big deal if the kid doesn’t die. Then there is #42. The Irrelevant Mitigation: “He’ll/She’ll/They’ll get over it”:

” #42 is pure callousness mixed with consequentialism, and thus beyond redemption or ethical application.. It holds that wrongful conduct is somehow mitigated by the fact that the wound heals, forgiveness is granted, or time breeds forgetfulness. It isn’t. How and whether victims recover or get over their anger does not alter the original misconduct, mitigate it, and certainly does not erase it. Those who cite this rationalization are shrugging off accountability and are signalling that they will repeat their unethical conduct or worse, counting on their victims to give them an opportunity to harm them again. Anyone who employs The Irrelevant Mitigation cannot be trusted”

The despicable suggestion that Jackson’s alleged victims consented to being raped, however, because they wanted it, is really revolting. This is #48. Contrived Consent, or “The Rapist’s Defense”, which…

…aims to cleanse unethical conduct by imagining that the victim consented to it, or secretly sought the result of the wrongful act. The most infamous example of this rationalization is, of course, the rapist’s defense that the victim either was inviting a sexual assault by flirtatious conduct or provocative dress, or secretly “wanted it.”

It is, perhaps, the ugliest rationalization of all.

The good news is that these idiotic comments, signature significance for someone whose ethics alarms have turned to moldy cheese, are attracting appropriate condemnation. Good. [Pointer: Other Bill]

3. Here’s some dishonest leftist spin for the Mueller investigation, as the impeachment hounds try to somehow make the facts consistent with their delusions. From ThinkProgress:

“Mueller’s team has filed dozens of indictments and secured convictions and guilty pleas in the conspiracy to interfere in the 2016 election: Six of Trump’s close associates and employees have faced charges. George Papadopoulos, a former campaign adviser; Paul Manafort, Trump’s former campaign chair; Rick Gates, a campaign aide and longtime Manafort business partner; Michael Flynn, a former foreign policy adviser; Michael Cohen, Trump’s former lawyer and fixer; and Roger Stone, a longtime Trump adviser, have all been charged by Mueller. Manafort and Cohen have been convicted and sentenced to prison.”

That’s multiple lies framed by a lie. None of Mueller’s indictments involve any conspiracy to interfere with the election except the symbolic charges against Russians,  and if there had been any evidence of such a conspiracy, an American would have been inducted on those grounds. Manafort was indicted for his own crimes, not any related to the campaign. Flynn and Cohen had no involvement with Russia either. The others were charged with process crimes: lying to law enforcement, not “colluding” with Russia.

4. “Worst Nazi Ever!” That’s Instapundit Glenn Reynolds gag tag for Trump actions like declaring that Israel should  have sovereignty over the Golan Heights, ending decades of U.S. policy of tip-towing around the issue. It also fits here: The President issued an  executive order directing federal agencies to “take appropriate steps” to “promote free inquiry” at institutions that receive federal research and education grants, including thorough compliance with the First Amendment.  F.I.R.E. approves.

5. Surprise! Your Facebook friends are wrong, and don’t know what they are talking about...It is overwhelmingly likely that the supreme Court will approve the use of emergency powers to build “the wall.” Richard H. Pildes, professor of constitutional law at New York University, wrote a convincing article, “How the Supreme Court Weakened Congress on Emergency Declarations,” in which points out…

  • The National Emergencies Act (NEA), passed by Congress in l976, never defines that an emergency is, largely leaving that assessment to the President.
  • Presidents have used the NEA 58 times. In every case–every case!— the President spent funds not appropriated by Congress.
  • In no case did the Supreme Court overturn the action.
  • The Supreme Court decision in Immigration and Naturalization Service v. Chadha, which declared that “legislative vetoes are unconstitutional,”  including vetoes of Presidential actions under the National Emergencies Act.
  • Absent Congress overriding Trump’s veto of the bill designed to stop his declaration of the emergency at the border, a result that is unlikely, there is no legal way to block the Trump as he acts on the authority of the NEA.
  • Trump neither violated the Constitution nor violated the separation of powers. His unilateral action was a constitutional power ceded to him by an act of Congress
  • President Obama used the act to transfer funds without congressional authority to his health care act.

I didn’t think there was a chance that the President’s power to do this would not be upheld, and the article makes me more certain than ever.  I also agree with Ronald Trowbridge that if the Justices were capable of ruling only on the law rather than partisan politics, the decision would be unanimous.

 

Unethical Prosecution, Incompetent Jury: Once Again, “Sorry” Isn’t Enough.

/ Jack Marshall / 26 Comments

After Archie Williams (above) was released from a federal penitentiary  last week after serving 36 years  not only for a crime he didn’t commit, but  after a false conviction that would have been prevented by decisive exculpatory evidence that was available to the prosecution from the beginning. The district attorney for East Baton Rouge Parish, Hillar C. Moore III, said in court, “As a representative of the state, I apologize.”

I’m sure that makes Williams feel all warm inside. As we discussed here just this month in another case of wrongful arrest, trial and imprisonment, the kind of life-destroying mistakes that send citizens to prison for crimes they didn’t commit must involve accountability for those responsible beyond mere financial damages paid by the State.

This case is especially infuriating. It was known at the trial, and admitted by the prosecution, that  fingerprints found at the scene where a woman had been raped and stabbed in in Baton Rouge, La. belonged to someone other than the man standing trial for the crime.  Under basic prosecutorial ethics, Williams shouldn’t have been charged. The prints guaranteed reasonable doubt.  An ethical  prosecutor is not supposed to decide, “Well, maybe we can convince the jury to ignore those prints.” Prosecutors aren’t supposed to fool juries.  Ethical prosecution demanded that the State acknowledge doubt, no matter how much it wanted to clear the case, The victim of the attack was the wife of a wealthy and powerful man.

Instead, the prosecutor at the trial trivialized the significance of the then-unidentified fingerprints found at the scene.  “How many people come through your house?” Jeff Hollingsworth asked the jury, after suggesting that the prints could have belonged to  a plumber or a carpenter, “The air-conditioning man, people who clean your carpets, the little girl home from school.”

Then it was the duty of the police to determine who those people were, match the prints, and determine that they didn’t commit the crime. Without that due diligence, there is doubt as a matter of reason as well as ethics.

Technicians in a crime lab eventually ran the fingerprints  through a national database, and  within hours there was a match with a serial rapist. That happened last week, however, almost four decades after the prints should have been identified. When Williams  requested that the fingerprints be run against the national database in 1999, prosecutors opposed his request and  no statute required them to comply…just fairness and an interest in justice.

The fingerprints weren’t the only reason the jury should have acquitted Williams. Although the victim was certain that he was her attacker, several aspects of her description of the rapist didn’t match  Williams. His lawyer at the trial, Kathleen S. Richey, accurately told the jury that  the victim had described a  taller man with a scar on his shoulder blade.  Williams did not; he had a scar on his upper arm.

The jury found him guilty beyond a reasonable doubt anyway. He was 22 when police arrested him. Archie is Williams is 58 today.

It was dawning on criminologists by 1983 that eye witness testimony was less reliable than previously thought, and that identification could be negligently or intentionally be manipulated by police. Combined with the mysterious fingerprints, the shaky ID should have assured Williams’ acquittal. Juries, however, don’t know the law, don’t have experience evaluating evidence, and sometimes, as Reginald Rose pointed out in “Twelve Angry Men,” just want to get home, are misled by their biases, or just aren’t very bright.

I hesitate to call for some kind of sanctions or penalties when a jury botches its job like this; after all, the police screwed up, the prosecution was unethical, the judge let it all happen, and they were doing jobs that they had been trained to do. Nonetheless, it seems like some consequences of a bad verdict might focus jurors attention a bit more, to the benefit of justice. What those consequences might be, I have no idea.

I would support a law mandating the resignation and permanent bar from further prosecuting duties any prosecutor involved in sending an innocent man to prison, however.

It’s fascinating that such a case should come to public attention at the same time that activists, feminists and progressives are arguing that the presumption of innocence for men accused of sex crimes should be reduced. Archie Williams graphically shows where that position leads.

Ethics Quote Of The Month: Glenn Greenwald

/ Jack Marshall / 19 Comments

“The Mueller investigation is complete and this is a simple fact that will never go away: not one single American was charged, indicted or convicted for conspiring with Russia to influence the 2016 election – not even a low-level volunteer. The number is zero.Compare what cable hosts (let’s leave them unnamed) & Democratic operatives spent two years claiming this would lead to – the imprisonment of Don, Jr., Jared, even Trump on conspiracy-with-Russia charges – to what it actually produced. A huge media reckoning is owed. Don’t even try to pretend the point of the Mueller investigation from the start wasn’t to obtain prosecutions of Americans guilty of conspiring with Russia to influence the outcome of the election or that Putin controlled Trump through blackmail. Nobody will believe your denials”

—Muckraking journalist Glenn Greenwald, in a series of tweets reacting to the end of the Mueller investigation and the announcement that there would be no further indictments.

Greenwald is hardly a Trump supporter and his reporting has a strong progressive tilt. He does strive to be a truth-teller however, and adjust for his biases, and unlike all the obnoxious gloating I’m seeing on the conservative media, his analysis should be respected.  That there were no indictable crimes related to “Russian collusion” should not have been a surprise except to the Hillary bitter-enders and Trump-deranged who were certain that the President had to have won the Presidency illicitly,  because…because….well, just because. Of course, it was just moral luck that an investigation like Mueller’s didn’t find more, because that kind of investigation would be likely to uncover bad deeds in the campaigns of any Presidential candidate. Continue reading →

Ethics Dunce AGAIN By A Man In A Position That Should Never Include An Ethics Dunce: Pope Francis

/ Jack Marshall / 40 Comments

Let’s see now. You are the titular head of a religious organization that talks a good game about virtue, morality and the dangers of sin, and it has been shaken to its core by an ongoing scandal involving thousands of officials sexually molesting hundreds of thousands of children while your organization not only covered up the crimes, but facilitated them. After the latest outbreak of this decades—centuries?—long scandal, you declared that your organization would regain the trust of its members by reversing its previous corrupt practices, and send clear messages that the conduct that endangered and damaged children would not be tolerated.

Then, when one of the highest officials in your organization offers his resignation after being convicted in a court of law for failing to stop one of the ongoing molesters despite knowledge of his vile  activities, you refuse to accept that resignation.

What sense does this make? This is a fair summary of Pope Francis’s recent decision to reject the resignation of Cardinal Philippe Barbarin despite his conviction this month for covering up decades-old allegations of sexual abuse by a priest in his diocese. The only way it makes sense is if the Pope doesn’t comprehend the seriousness of the sex abuse scandal, and still places loyalty to the church and his colleagues above the welfare of victims past, present and future. Continue reading →

Is It Unfair To Say That The Democrats Favor “Open Borders”? Ten Reasons Why It Is Not.

/ Jack Marshall / 14 Comments

My sister, a smart if feisty woman who I plead guilty to using on Ethics Alarms like as William Saroyan used his bartender,  was annoyed at my statement in a recent post that the Democratic Party, or which she is a member, though perhaps not quite as proud a member as she once was,  had become the party of open borders. She’s a lawyer, and combining that with the increasing tendency on the left to deny the elephants behind them (“Elephant? What elephant?”) whenever the metaphorical beast starts to stink and squash things, she’s pretty good at blurring such issues. On this one she says, “Obviously the Democrats don’t support open borders. Nobody has ever proposed open borders. We will never have open borders. Obama deported a lot of illegal immigrants.”

All true, and all deceitful. The policy advocated by Democrats and the rhetoric they use in the process creates a modified open borders policy, if an astoundingly stupid one. An open borders policy of any kind for a nation like the United States is suicidal in the long term, destructive in the short term. Progressives and Democrats resort to hilariously consistent talking points when confronted on their hypocrisy and dishonesty: “The system is broken, and we need comprehensive immigration reform.” Quiz them on what that pat phrase means, however, and you get humming. Yes, the system is broken. Democrats, for one illicit reason, and business interests, aka Republicans, for another, broke it long ago, and both have intentionally tap-danced, lied, and intentionally muddied the issue to keep it broken. Now, if my sister objected to my labeling of the Democratic Party as the party of open borders by a arguing that it is unfair to  leave the GOP out of that box, okay, I’ll concede the validity of that in part. The problem is that the Republicans have a President in office who is unequivocally opposed to open borders, to say the least, and who is trying to end the nonsense. Democrats, not Republicans, are blocking him.

The totality of Democratic party and progressive conduct and rhetoric equals a desire to keep out southern borders porous, which means “open” in reality, if not political double talk. Among them, in no particular order since I am rushed and want to get a pots up before I have to do a 7:30 am tech check here in San Diego: Continue reading →

Morning Ethics Warm-Up, 3/18/2019: Paranoia, Pettiness, Pirro, Provoked Applicants, Piqued Students, Posturing And Progressives

/ Jack Marshall / 16 Comments

Good Morning, Pacific Time Zone!

I’m heading to San Diego tomorrow to talk about “Five Looming Ethics Issues for Lawyers  and  Their  Corporate Clients”  to a group of over 600 lawyers. THEY don’t think my analyses of ethics issues violate community standards…okay. I admit it, I’m getting paranoid. Despite a lot of, I humbly believe, useful, timely and well-presented content, the weekend traffic was terrible, and comments were sparse, if excellent. This year, so far, is lagging behind last year, which seriously trailed the year before. What’s going on here? Has Google secretly joined Facebook in its efforts to keep the posts here from reaching an audience? Of could it be that I just suck? Maybe Donald Trump really has killed all belief in ethics…that’s the ticket! Blame the President!

1. Pettiness and vindictiveness vanquished. Good. The Judicial Council of the 10th U.S. Court of Appeals  has affirmed its December decision to reject 83 ethics complaints against Justice Brett Kavanaugh, all filed by bitter partisans who are determined to hurt the newest Justice because the Democrats’ slimy and unethical ambush tactics failed, as they should have. In a 6-1 decision, the judicial council affirmed its earlier finding that the federal law governing misconduct complaints against federal judges does not apply to justices on the U.S. Supreme Court. Many of the complaints filed against Kavanaugh argued he had made false statements under oath during hearings on his nominations to the U.S. Court of Appeals for the D.C. Circuit in 2004 and 2006 and to the U.S. Supreme Court last year—you know, like having an innocent recollection of what “boof” meant in his completely irrelevant high school year book.  Other complaints accused Kavanaugh of making inappropriate partisan statements in his inappropriately partisan hearings, or claimed he treated members of the Senate Judiciary Committee with disrespect, or as I would put it, the disrespect they deserved for attempting to smear his good name and reputation through demagoguery and calls to reject the presumption of innocence.

Let me remind everyone that Ruth Bader Ginsberg, in her confirmation hearings, stated under oath that she had no pre-formed opinions that would affect her objectivity in abortion cases. Nobody filed any ethics complaints. Continue reading →

Sunday Morning Ethics Warm-Up, 3/17/19: March Ethics Madness!

/ Jack Marshall / 9 Comments

Good morning!

Any week that starts off with John Belushi’s immortal reflections on March just has to be a good week.

1. Connecticut: Judicial ethics and guns. Anti-gun fanatics are cheering this week’s ruling by the Connecticut Supreme Court  reversing  a lower court judge dismissing a lawsuit by the families of victims of the Sandy Hook shooting against Remington Arms Company, allowing the case to proceed. In the 4-3 decision the court  possibly created a path that other mass shooting victims can follow to get around the federal Protection of Lawful Commerce in Arms Act, known as PLCAA, which has protected the manufacturers of the AR-15 assault rifle from lawsuits, thus setting the stage for a sensational “Runaway Jury”-type trial. The court’s reasoning is that the Sandy Hook families should have the opportunity to prove that Remington violated the Connecticut Unfair Trade Practices Act (CUTPA) by marketing what it knew was a weapon designed for military use to civilians. The problem is that the ruling ignores the law, as John Hinderaker explains (but he’s not the only analyst trashing the decision):

“Firearms of all kinds have been ‘designed for military use.’,” he writes. “The 1911, designed by John Browning, was the standard U.S. military pistol for many years and remains one of the most popular pistol designs today. So what? There is no such exception in the Second Amendment…Under the Supremacy Clause, federal law will govern over state law. The Protection of Lawful Commerce in Arms Act is intended to avoid precisely the result reached by the Connecticut Supreme Court. The PLCAA puts firearms manufacturers on the same plane with all others. If their products are not defective–if they do not malfunction–they are not liable. If someone stabs a victim to death with a knife, the victim’s heirs can’t sue the knife manufacturer. It is the same with firearms.”

Hinderaker correctly concludes that significance of the ruling is not that it opens a road for the Second Amendment to be constrained, or for ruinous liability to applied to gun-makers, but that it shows how courts will deliberately ignore the law to reach political goals. Continue reading →

Nancy Pelosi And Impeachment Ethics

/ Jack Marshall / 47 Comments

Clearly, it’s time to revisit impeachment ethics issues, after Nancy Pelosi’s snide declaration (after saying that she is always respectful of the Presidency, mind you), that the President “wasn’t worth it,” it being the political risk of sending him to a trial in the Senate. We should pause a second to acknowledge the hilarity inherent in the Speaker saying that impeachment wasn’t desirable because it would be “divisive to the country” and “divides the country.”  The Democrats, led by Barack Obama, who pointed the way, have intentionally and cynically sliced and diced the country into victims and villains, champions of the oppressed and deplorables, for a decade, unforgivably risking national strength, comity, and peace for speculative electoral gain.

We haven’t added a new Plan to the list of “resistance” and Democratic Party coup attempts—for that’s what they are–including impeachment theories, since last July, though many of the classics re-emerged in the news.  Remember, there were law professors who advocated impeaching Trump before he was inaugurated.  Here’s where it stands:

Impeachment And Coup Plans.

Plan A: Reverse the election by hijacking the Electoral College.[Status: FAILED and DEAD, until it rises again in 2020]

Plan B: Pre-emptive impeachment.  [Status: FAILED and DEAD]

Plan C : The Emoluments Clause. [Status: Still twitching! ]

Plan D: “Collusion with Russia” [Status: On life support]

Plan E : ”Trump is mentally ill so this should trigger the 25th Amendment.” [Status: Amazingly, still being talked about .]

Plan F: The Maxine Waters Plan, which  is to just impeach the President as soon as Democrats control both Houses, because they can. [Status: Hope springs eternal!]

Plan G : “The President obstructed justice by firing incompetent subordinates, and that’s impeachable.” [Status: LAME, but ONGOING]

Plan H: “Tweeting stupid stuff is impeachable” [Status: ONGOING]

Plan I:  “Let’s relentlessly harass him and insult him and obstruct his efforts to do his job so he snaps and does something really impeachable.” [Status: ONGOING]

Plan J : Force Trump’s resignation based on alleged sexual misconduct that predated his candidacy. .[Status: FAILED and DEAD]

Plan K: Election law violations through pay-offs of old sex-partners [Status: ONGOING]

Plan L: The perjury trap: get Trump to testify under oath, then prove something he said was a lie. [Status: To be determined.]

Plan M: Guilt by association. Prove close associates or family members violated laws. [Status: Ongoing.]

Plan N: Claim that Trump’s comments at his press conference with Putin were “treasonous.”

I’m sure you’ve noticed that the soft coup-complicit news media hasn’t been predicting impeachable results from the Mueller investigation lately, which seems odd, since they have been fanning flames of anticipation and suspicion from the day it started. This is because most rational observers are pretty certain that Trump, as he has said from the beginning, did nothing wrong, and certainly nothing impeachable regarding Russia. Never mind:  Democrats have made it clear that this soon-to-be-pronounced dead horse will be flogged by them into goo as long as it attracts donations and is a viable means of stopping the elected President from doing the job he was duly elected to do. Continue reading →

One More Time…Ethics Dunce: California, And Its “Jumbo” Culture

/ Jack Marshall / 14 Comments

Has any state…heck, has any 10-year-old’s tree house club…had as many terrible ideas as California? No wonder its presidential vote single-handedly gave the popular vote to Hillary. And the United States is supposed to allow itself to be the dog wagged by this Bizarro World ethics culture?

The latest: Under a bill now heading through the California State Legislature, millions of criminal Californians who have misdemeanor or lower-level felony records would have their criminal records officially sealed from public view once they completed prison or jail sentences. I’m shocked to read that the legislation would not apply to people convicted of committing  murder or rape. Well, give the Golden State time.

We are told with a sniff and a tear that in the United States, a record showing a criminal conviction or even an arrest that does not lead to a conviction can make it difficult for someone to find a jobs, rent an apartment or obtain professional license. Well, that’s because conduct has consequences, and in particular breaking trust has consequences. Society is based on mutual trust. Committing criminal acts raises reasonable doubts in society as to whether an individual can be trusted to–let’s see, handle money for an employer, follow rules, meet financial obligations or serve in a professional capacity, the primary requirement of which is trustworthiness.

Simply because someone has been in jail doesn’t mean they have become more trustworthy. Why would it? So under California’s brilliant scheme, a bank could hire a convicted embezzler as a bank teller. A law school could hire a convicted bank-robber as a law pro—oops. Sorry. My alma mater already did that. But at least it had the opportunity to know what it was doing.

This is kindergarten easy: if I am going to trust someone with my business or my property, I have a right to know who that person is, and if he or she has a record of warranting trust. The fact that convicted criminals have a tough time doesn’t mean I should be put at risk. They committed the crime, why are the citizens who haven’t broken any laws being forced to take risks they don’t want to take? Continue reading →

Observations On “Operation Varsity Blues” [UPDATED!]

/ Jack Marshall / 36 Comments

It is rare that an ethics story is the front page feature of the day, but the scandal that broke last nigh is certainly that. From the AP, on the results of the investigation code-named “Operation Varsity Blues”…

Fifty people, including Hollywood stars Felicity Huffman and Lori Loughlin, were charged Tuesday in a scheme in which wealthy parents allegedly bribed college coaches and other insiders to get their children into some of the nation’s most elite schools. Federal authorities called it the biggest college admissions scam ever prosecuted by the U.S. Justice Department, with the parents accused of paying an estimated $25 million in bribes.

More…

At least nine athletic coaches and 33 parents, many of them prominent in law, finance or business, were among those charged. Dozens, including Huffman, were arrested by midday.

Huffman, best known for “Desperate Housewives,” is married to celebrated actor William Macy (“Fargo”). Presumably he is going to be arrested too.

The coaches worked at such schools as Yale, Stanford, Georgetown, Wake Forest, the University of Texas, the University of Southern California and the University of California, Los Angeles. A former Yale soccer coach pleaded guilty and helped build the case against others.

Yikes. You can get all the details at The Atlantic, Esquire, The Stanford Daily, Chicago Tribune, Raw Story, The Week, Justice News, The Texas Tribune, Slate, SFist, Recode, Page Six, TechCrunch, TMZ.com and Fox News.

Ethics Observations: Continue reading →