Law & Law Enforcement

Morning Ethics Round-Up, 8/13/2018: Rally? What Rally? Bias? What Bias? Texts? What Texts? Spy? What Spy?

/ Jack Marshall / 13 Comments

Huh. I didn’t know that ZZ Top were white supremacists!

Good Morning!

I just know this week will be better than last week…

…though these items certainly don’t inspire hope.

1. The dangers of “future news” That huge, scary rally in Washington where the nation’s capital was going to be descended-upon by all those white supremicists activated by Donald Trump’s election and rhetoric to celebrate last year’s Charlotteville riots? About two-dozen people showed up. I talked to friends in the District who said they were terrified of the rally. CNN, the networks, the Times and the Post had all headlined this major, major event, which would show just how much racism there is in America. This was fake news, straight up. It was imaginary, “future news,” a headline about what was going to happen because the mainstream news media wanted it to happen. Then they could bleat out the narrative that President Trump was inspiring racists to come out of the woodwork. Maybe someone would get killed, like in Charlottesville! Well, they could hope.

What investigation went into the determination that there was going to be a huge gathering of racists in D.C.? Clearly, not enough. 24? 24??? I could set up a rally of locals who think Gilbert and Sullivan should be taught in the schools that is five times that with some phone calls, texts and a Facebook post. It would take me a couple of hours. Yet the Times put the inevitability of this massive white supremacy rally on its front page. “After weeks of hype…” wrote the Times. Weeks of hype by the press.

Incompetent, dishonest, irresponsible. You know. As usual.

It is worth mentioning that the counter-demonstration to the imaginary demonstration was many times larger than two-dozen people.

2. In related news about non-news...The Boston Globe has been contacting newspaper editorial boards and proposing a “coordinated response” to President Trump’s criticism of the news media, especially his controversial “enemy of the people” rhetoric. “We propose to publish an editorial on August 16 on the dangers of the administration’s assault on the press and ask others to commit to publishing their own editorials on the same date,” The Globe said in its pitch to fellow papers.

Talk about bad timing! We just had the explosion of the fake racist rally story. We have the Manafort trial being featured on the front page of most newspapers like it’s the O.J. trial, when  the majority of public has no idea who the man is and the trial details have nothing to do with anything newsworthy. We have the mainstream news media giving the claims of a reality show villain the kind of attention John Dean received for his Watergate testimony while it makes sure nobody knows that a Chinese spy infiltrated the staff of a powerful U.S. Senator for 20 years. Nah, the news media isn’t the enemy of the public! It just deliberately abdicates its duty to inform the public objectively , is engaged in a coordinated effort to bring down an elected President, has abused its First Amendment-bestowed immunity from the consequences of its conduct, and is working to divide the nation to the point where it cannot function. That’s all. None of this is good for the people or the nation, but that doesn’t make those intentionally harming both enemies, exactly….although off the top of my head,  I can’t think of a more accurate word for it. Continue reading →

Now THIS Is An Incompetent Judge…

/ Jack Marshall / 18 Comments

The sky’s the limit!

High school  wrestler and football player Logan Michael Osborn, then 18, met a 14-year-old girl at a high school play in April 2017. After the curtain fell, they went for a walk down a secluded path, where Osborn overcame the young woman, tied a belt around her neck and hands, and performed a sex act. Osborn’s defense attorneys argued that it all was consensual, but consensual or not, she was still only 14, making this statutory rape.

In September 2017, Osborn pleaded guilty to sexual assault, saying that his conduct was the result of  “poor judgement.”  The judge sentenced Osborn to 10 years in prison with eight years suspended on his conviction of having carnal knowledge of the girl without use of force, a felony. Osborn also had to register as a sex offender. In January, however,  Chesterfield (Virginia) Circuit Judge T.J. Hauler stayed the  two-year term, saying he wanted to review the case further,and this week, he revealed the result of his review. The entire 10-year sentence is now stayed, meaning that Osborn will receive no prison time at all.

At last week’s hearing, Judge Hauler asked to hear “some positive things” about Osborn so James Trent, a foreman at an electrical company where he now works, commended Osborn’s work ethic and performance, saying that “sky’s the limit” for his future. The negative things? Well, he does appear to be a habitual sexual predator, if that counts. He has been accused of engaging in inappropriate sexual conduct with girls seven previous times, including when he was 12. In that case, Osborn was charged with grabbing the genitals of another student. (The case was dismissed.) Continue reading →

Morning Ethics Warm-Up, 8/10/2008: Post-Newark Hangover Edition

/ Jack Marshall / 26 Comments

Good morning!

Trying to get back to normal here. I hope it isn’t age, but I suspect it is: for quite a while now I have found myself foggy and exhausted up to three days after a period of stressful travel combined with one or more three-hour seminars. One reason is that I never can sleep in hotels;  another is all the walking around airports lugging two heavy bags, since 1) I cannot risk checking luggage 2) My presentation materials alone weigh more than ten pounds and 3) I object to bringing rollerboards on airplanes as inconsiderate and unfair to other passengers. The side effects right now include a sprained wrist and a swollen knee.

Speaking of side-effects, one of the unfortunate ones of the craven abandonment of the field of battle by the blogs’ “resistance” participants is that traffic collapses quickly without new posts. Over at Popehat, Ken sometimes goes weeks without posting anything. Then again, maybe he’s smart enough not to pay any attention to daily, weekly and monthly fluctuation in traffic, unlike me. Once, if travel and schedule snafus stopped me from posting, I could count on Chris, deery or Charles to have a long-exchange of contentious opinions with other commenters as they maintained that there was no media bias, that Trump should be impeached because he violated “norms,” and the FBI was as professional and uncorruptable as Elliot Ness, or at least Elliot Ness as portrayed by Robert Stack. Now they have retreated into the comforting warmth on the left-wing echo chamber.

1.  Tipping ethics. I was going to include this in yesterday’s salvage operation, but literally had to end the post so I could take a nap. The following tipping dilemmas occurred during my trip, not for the first time: Continue reading →

Sunday Ethics Reflections, 8/5/2018: Abdication, Arrogance, Airbrushing

/ Jack Marshall / 43 Comments

1. If you want to seed a civil war, this is how you do it…Why is this incredible story just an item on the daily ethics potpourri? For one thing, I don’t see why much commentary is necessary, or should be. I don’t typically  write about robberies or murders, or other outright unethical acts that all but the worst sociopaths can recognize in a trice as unethical.  I feel the same way about this, from the Wall Street Journal:

A mob surrounded ICE’s office in Southwest Portland June 19. They barricaded the exits and blocked the driveway. They sent “guards” to patrol the doors, trapping workers inside. At night they laid on the street, stopping traffic at a critical junction near a hospital. Police stayed away. “At this time I am denying your request for additional resources,” the Portland Police Bureau’s deputy chief, Robert Day, wrote to federal officers pleading for help. Hours later, the remaining ICE workers were finally evacuated by a small federal police team. The facility shut down for more than a week. Signs called ICE employees “Nazis” and “white supremacists.” Others accused them of running a “concentration camp,” and demanded open borders and prosecution of ICE agents. Along a wall, vandals wrote the names of ICE staff, encouraging others to publish their private information online.

Federal workers were defenseless. An ICE officer, who asked that his name not be published, told me one of his colleagues was trailed in a car and confronted when he went to pick up his daughter from summer camp. Later people showed up at his house. Another had his name and photo plastered on flyers outside his home accusing him of being part of the “Gestapo.”

Where were the police? Ordered away by Democratic Mayor Ted Wheeler, who doubles as police commissioner. “I do not want the @PortlandPolice to be engaged or sucked into a conflict, particularly from a federal agency that I believe is on the wrong track,” he tweeted. “If [ICE is] looking for a bailout from this mayor, they are looking in the wrong place.”

The phrase, “particularly from a federal agency that I believe is on the wrong track” mandates impeachment on its face. It is not the mayor’s proper role to decide who deserves the protection of the city against lawbreakers. “There is no place for personal, political bias when it comes to providing public safety services to our communities,” Portland Police Association president Daryl Turner said in a statement on Facebook. “In that respect, our Mayor, who is also our Police Commissioner, has failed miserably.”

Also:

  • How many readers of Ethics Alarms saw broadcast news accounts of this incident and the Portland mayor’s conduct? It is the tendency to set out to bury and hide the worst examples of progressive and resistance excess that is the smokiest of smoking guns showing the degree to which journalists are actively attempting to indoctrinate and mislead rather than inform.
  • Do the citizens of Portland really condone this?

Continue reading →

Afternoon Ethics Jolt, 8/1/2018: When You Cross Fake News, Dishonest Journalism, Anti-Gun Hysteria, Ignorance And “The Resistance,” What Do You Get?

/ Jack Marshall / 34 Comments

 A new freakout!

…and dumber than most, too. U.S. District Judge Robert Lasnik of Seattle issued a temporary restraining order that blocks the Trump administration from refusing to try to block publication of blueprints to produce guns from 3D printers. Eight states and Washington, D.C. had sought the order.  A company called Defense Distributed planned to publish the blueprints after the U.S. State Department agreed to settle a suit filed by the company in an agreement made public on July 10. The suit had claimed the State Department violated the First Amendment by warning in 2013 that publication of the blueprints violated export controls and could lead to a jail sentence for the company CEO,  Cody Wilson.

It sure sounds like prior restraint to me, and I suspect, when this gets to the Supreme Court, which it inevitably will, that will be the conclusion.

This began as one more example of the Obama Administration playing fast and loose with the Bill of Rights. Now, it may well be, as the suit by the states alleges, that the Trump Administration didn’t handle its legal U-turn properly, it being, after all, the Trump Administration.  Nonetheless, the government blocking the online publication of information, which is what a blueprint is, when no copyrights, patents or trademarks are being violated or national secrets revealed, seems like a pretty clear First Amendment violation.

Never mind, though. The story sparked a perfect storm of fake news, fear-mongering and incompetent journalism. The Times, among others, called the blueprints a “downloadable gun.” There is no such thing as a downloadable gun. You have a gun when you download a blueprint for a gun just like you have a house when you download a blueprint for a house. That term isn’t short-hand, it’s wrong: misleading, inaccurate, and really, really stupid.  Other sources blamed President Trump and his administration for the fact that 3-D printer plans for guns were available. They have been available for years. Here are some downloads in case YOU want to have the plans for weapons that you will only be able to make if you happen to have some very expensive equipment. Continue reading →

Ignore The Spin: It Was Unethical For Michael Cohen To Secretly Record His Client, Donald Trump

/ Jack Marshall / 25 Comments

This morning the Washington Post tries to spin the clear ethics violation by Michael Cohen when he surreptitiously recorded his client, Donald Trump, when his client didn’t know or have any reason to suspect that such a recording was taking place. It was unethical. I have never spoken to a lawyer or ethics authority who didn’t believe such a recording would be unethical, at least until such an ethics breach was made against this particular betrayed client. Now, since the legal profession is one of many that have abandoned integrity and professional standards in the fever of anti-Trump madness, I’m sure several, maybe many, will change their tune. You know: they don’t want their friends to be angry with them.

Yes, Cohen’s taping was legal, because it occurred in New York, where only one party to a conversation has to know it is being taped. That is irrelevant to the ethics breach at issue. For a lawyer to tape a client secretly is always unethical. That’s my position, and I know of no persuasive argument against it. The Post article says that the matter isn’t clear cut. Oh yes it is.

Until 2001, there was little dispute that a lawyer was violating Rule 8.4, which pronounces it misconduct for a lawyer to engage in misrepresentation, dishonesty, fraud or deceit. Taping anyone secretly is misrepresentation. Does anyone want to dispute that? Try. If I am talking to you privately, and you do not tell me that I am being recorded, then you are representing to me that I am NOT being recorded, unless our previous conversations were recorded and I knew that. A few states just ducked the issue, and held that a lawyer could do what any other citizen could do in a state that made one party recordings legal. The American Bar Association, however, right through the 20th Century, held that it was per se unethical for a lawyer to surreptitiously tape anyone.

The absolutist position was an Ethics Incompleteness Principle accident just waiting to happen. In other words, there had to be exceptions, and since almost all states allowed District Attorneys to surreptitiously record suspected criminals without the threat of ethics sanctions, exceptions were already recognized. Thus, in 2001, the ABA revised its position with equivocal, muddled, Formal Opinion 01-422, “Electronic Recordings by Lawyers Without the Knowledge of All Participants,” which the ABA summarized this way:

A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules. Formal Opinion 337 (1974) accordingly is withdrawn. A lawyer may not, however, record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded. The Committee is divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so.

It does not “necessarily” violate the ethics rules because, the opinion explains (as various state opinions have as well), sometimes recording a third party serves the interests of justice, as when, for example, a client is trying to show domestic abuse, or when there is an allegation of illegal loan or housing discrimination. 01-422 wanders into Clintonesque rhetoric, however, when it states, Continue reading →

Morning Ethics Warm-Up, 7/31/18: The Self-Deception Edition

/ Jack Marshall / 39 Comments

Goodbye, July, 2018!

(and don’t come back!)

1. Ethics translation time! Baseball’s current World Champion Houston  Astros just traded for young, exciting closer Roberto Osuna from the Toronto Blue Jays. This raised some eyebrows, because the 23-year-old Osuna is just completing a 75-game suspension from MLB for allegedly beating his wife. The Blue Jays had decided that they wanted no part of Osuna, and that he would not be a member of their team going forward, despite the fact that he is regarded as one of the best late-inning relievers in the game.

Anticipating some criticism from Houston fans and baseball fans in general, who usually don’t like cheering for disgusting people,Astros GM Jeff Luhnow released a statement  following the trade, saying,

 “We are excited to welcome Roberto Osuna to our team. The due diligence by our front office was unprecedented. We are confident that Osuna is remorseful, has willfully complied with all consequences related to his past behavior, has proactively engaged in counseling, and will fully comply with our zero tolerance policy related to abuse of any kind. Roberto has some great examples of character in our existing clubhouse that we believe will help him as he and his family establish a fresh start and as he continues with the Houston Astros. We look forward to Osuna’s contributions as we head into the back half of the season.”

Translation:

“Our team has had bullpen problems all season, and as of now we have no closer, even as the team has lost three games in a row [now it’s four], two of our best players are injured, and we’re beginning a series against the Mariners, who are just a few games behind us. So in the interest of winning and because the ends justify the means, we are suspending our “zero-tolerance” policy regarding “abuse of any kind” to tolerate a player who Major League Baseball has determined to be a very serious abuser. I don’t know how we’re going to tell another player who is credibly accused of less serious abuse that we won’t tolerate his presence on the team when we just voluntarily brought an abuser onto the team, but never mind: there’s a pennant to win. I’m pretending that Roberto has complied with all consequences related to his past behavior when he is currently pleading not guilty in his pending Canadian trial on battery charges, in the hope that most fans aren’t paying attention.”

“Thank you.”

Continue reading →

Monday Morning Ethics Warm-Up That Is Turning Up in the Afternoon Because I Looked Up At The Clock And Discovered I Had Missed Three Hours…

/ Jack Marshall / 17 Comments

Good something.

(Damn job…)

1.  Police state, or stupid state? The Boston Globe reports :

Federal air marshals have begun following ordinary US citizens not suspected of a crime or on any terrorist watch list and collecting extensive information about their movements and behavior under a new domestic surveillance program that is drawing criticism from within the agency.The previously undisclosed program, called “Quiet Skies,” specifically targets travelers who “are not under investigation by any agency and are not in the Terrorist Screening Data Base,” according to a Transportation Security Administration bulletin in March.

The internal bulletin describes the program’s goal as thwarting threats to commercial aircraft “posed by unknown or partially known terrorists,” and gives the agency broad discretion over which air travelers to focus on and how closely they are tracked.

But some air marshals, in interviews and internal communications shared with the Globe, say the program has them tasked with shadowing travelers who appear to pose no real threat — a businesswoman who happened to have traveled through a Mideast hot spot, in one case; a Southwest Airlines flight attendant, in another; a fellow federal law enforcement officer, in a third.

Look at these guidelines regarding what kind of conduct and clues could justify investigating a traveler:

I am less concerned with the civil rights implications of such idiocy than I am with the fact that the policy makers responsible for airport security appear to be morons.

But we knew that, I guess. [Pointer: Amy Alkon]

2. And it isn’t just the TSA. Remember when the IRS hired the same firm that had botched the design of the Healthcare.gov website? Now a recent Treasury inspector general’s report tells us that the IRS rehired more than 200 employees fired for misconduct in a little over a year. An earlier IG report indicates that this is a pattern dating back to 2009. It occurs, apparently, because the IRS does not provide officials responsible for hiring decisions with the information about employment history, so the IRS has rehired, among others…

  • A fired worker with several misdemeanor theft convictions and one count of felony possession of a forgery device.
  • 11 employees previously disciplined for unauthorized access to taxpayer accounts.
  • An employee who was absent without leave for 270 hours—the equivalent of 33 work days.
  • An employee fired for physically threatening co-workers.
  • An employee fired for lying about previous criminal convictions on employment forms.
  • 17 employees previously caught falsifying official documents.

Two IRS employees fired for poor performance were rehired within six months. In its response letter to the Inspector General’s Office, the IRS wrote that the IRS “determined its current process is more than adequate to mitigate any risks to American taxpayers, federal agencies, and its employees.”

Oh. All righty then!

Rep. Kristi Noem, (R-S.D.) has presented a bill, the “Ensuring Integrity in the IRS Workforce Act,” to the House that would prohibit the IRS from rehiring employees fired for misconduct or poor performance.

Good. (Pointer: The Daily Signal) Continue reading →

Now THIS Is Ethics Zugzwang! The Unfixable Catch-22 Of Sexual Harassment Law

/ Jack Marshall / 20 Comments

A recent question to the New York Times workplace column “The Workologist” perfectly illustrates a permanent flaw in sexual harassment law. Believe it or not, I have no recommendation regarding how to fix it. I don’t think it can be fixed.

Here was the question:

I work at a blue-collar job, and I am one of four women in a crew of 40. The guys never touch or harass me, or any of the women, as far as I know.They do, however, constantly hug and grab and bump each other in a friendly way. It’s not unusual for one of the guys to go through a whole short meeting (a stand-up “huddle”) with an arm around another guy’s shoulder. No one ever touches me, and it’s not that I want them to. That would be weird. But I almost feel left out. Should I let this “bro contact” bother me?

I love it. Perfect. This is what using the law to dictate ethics can result in, and does result in frequently: hypocrisy, confusion, and a double-bind.

Let’s begin with the last sentence: “Should I let this “bro contact” bother me?” The whole point of “hostile work environment” sexual harassment law is to make sure no woman has to ask this question. A boss who responds to a female employee’s complaint of a hostile work environment-creating unwanted sexual attention in the office with “Don’t let it bother you!” has breached his or her duty under the law.

So what’s going on here? The men in the company have adopted the current fad (Yechhh.) of hugging each other to express a range of things—support, congratulation, sympathy, platonic affection—and quite properly do not hug the few women in their midst, lest one of the females, reasonably or not (or perhaps intentionally, to grab some power or cash) be made “uncomfortable,” take the physical contact as unwanted and sexual in intent, complain, and perhaps sue. By not hugging them, however, the men isolate the women, exclude them from the social fabric of the “team,” and, in essence, discriminate against them by signalling that they are “the other,” thus creating a hostile work environment.

Even if some of the women announced their consent to be treated as “one of the guys,” it would not solve the dilemma. One of those bro-hugs could still turn into a copped feel, or be perceived as crossing lines by the female huggee. Then there is the looming  third party harassment problem: a woman who has not consented to being hugged might see her female colleagues being man-handled (but completely innocently, of course) and assume that consenting to unwanted physical contact was a condition of employment, or that they would be adversely affected if they did not agree to participate enthusiastically in the hug-fest. Not treating the women in the company like the men is discrimination; treating them the same is an open invitation to a sexual harassment lawsuit. Continue reading →

Sunday Morning Ethics Warm-Up, 7/29/18: (Yes, #4 Should Be A Free-Standing Post, But I’m In A Hurry…)

/ Jack Marshall / 26 Comments

Good Morning!

I love “Onward Christian Soldiers,” of course, but this is my favorite Arthur Sullivan-composed hymn…

1. Reminding me of the basic unethical and cynical nature of state lotteries...A middle-aged African American woman sits outside of our local 7-11 pretty much all day, seven days a week. I’ve written about her before, most recently when she let the door slam in my face despite our family occasionally giving her food, cigarettes and a ten-dollar bill now and then. This morning she bought 40 dollars worth of lottery tickets.

And if she hit the jackpot, she’d be back sitting out front and begging for money in a year or less.

2. My Facebook. theory. You noticed, I’m sure, that Facebook took a 100 billion dollar hit to its paper value in less than 48 hours last week. It all could have been avoided by honesty, transparency, humility, avoidance of virtue-signaling, and fealty to free speech.

  • Users should have been told, in automatic emails and in big, bold letters in disclaimers on the site, since too many of them are too dumb to figure it out, that anything they put on the free platform was fair game to be harvested, sliced, diced, used, sold, analyzed and exploited for any legal purpose, by any group, party, nation or organization, and if potential users didn’t like the terms, nobody was making them post.
  • Facebook should have avoided pretenses of virtue. It provides a useful means of networking and communication as well as cost-free mini-blogs to people unwilling to maintain real ones. It does so to make money, not to make a better world…especially since social media arguably makes a worse one.
  • It should have denied responsibility, in court if necessary, for “fake news” regardless of who created it. Any ad or “sponsored story” should have been so labelled, with Facebook’s position being “read and believe at your own risk. Check “facts” before you spread them around. It’s your responsibility, not ours.”
  • Facebook should have had faith and belief in the freedom of expression and speech, and not attempted to censor “hate speech” or “fake news,” neither of which are subject to precise identification and analysis without the corrupting influence of bias. Indeed, Facebook was obligated to support the First Amendment, as a major cultural force.
  • Facebook should have stayed apolitical. Instead, it joined the “resistance” freakout over Hillary Clinton’s loss, and signaled its virtue by agreeing with absurd and unsupported claims regarding the importance of fake and risible news stories on Hillary Clinton’s defeat.

Mark Zuckerberg is a classic example of a narrow, limited, juvenile savant whose one big idea gave him more power and influence than he was qualified to handle. Maybe losing all of that money will make him appropriately humble, but I doubt it. Such people almost never learn.

3. Is the U.S. State Department intentionally hassling trans women? This story makes a prima facie case that it is, and if that’s really what is going on, it is petty and wrong. It also is a classic Rashomon situation.  Government bureaucracies are inherently inefficient, incompetent, and screwed up beyond all reason or toleration. (Oddly, progressives want more such agencies, with more employees. Go figure.) The story linked appears to show the system trying to make things difficult for a particular group, but the individual targeted only sees how she is being treated, so it appears like obvious discrimination. That, however, is a very subjective assessment.

A member of my family is in jail for a few months, and had been granted work-release privileges so he could continue his job and career. However, those in charge of the program were openly hostile to his efforts to complete the paperwork and arrangements. They kept changing the rules, increasing requirements, threatening him, and delaying the process. When he contacted his lawyer, he was told, “these people can do anything they want to, and get their satisfaction from boring, low-paying jobs by abusing people like you, meaning anyone who would normally be their equals or better, but who is now under their thumbs. You have no choice. Do what they want, or you will suffer. Simple as that.”

My jailed family member is white, male, educated, well-spoken and polite. Eventually, after he grovelled enough, everything was straightened out. “You know,” he said ,”It I were black, there is no way you could have convinced me that I wasn’t the victim of racism.”

It could be the same with the alleged trans discrimination in the passport system. When one of the alleged victims says, “Make no mistake, this was an intentional action by the State Department to withhold recognizing my gender,” she is being sincere and perhaps naive. It may have been an intentional action by low level State Department employees to be assholes because they could be. [Pointer: valkgrrl] Continue reading →