Law & Law Enforcement

Morning Ethics Warm-Up Overstock, 5/15/ 2018: It’s Use Them Or Lose them…

/ Jack Marshall / 70 Comments

This is perplexing. I have a backlog of ethics stories and issues that I feel are better mentioned in the Warm-Up format, then that post run long, and the items in my basket of deplorable often get superseded by new issues, and are never seen here at all. The collective approach saves amazing amounts of time, so if I have to post each of the leftovers individually, that will preclude doing the work necessary on potentially more significant issues.

Well, today, at least, I’m posting on some of the morning issues that didn’t make the cut.

And this is why Royals used to avoid marrying commoners.

What an Ethics Dunce, and worse,  soon-to-be Royal father-in-law Thomas Markle is! Your daughter is unexpectedly in the middle of a world event (not that it should be that), and she is approaching the most exciting day of her life. One of your two duties is to be on hand to walk her down the aisle, and your other duty is not to screw things up for her and embarrass her. Markle couldn’t do either, because, it is evident, he is a low-life, the real equivalent of  Eliza Doolittle’s father in “My Fair Lady,” who after years of neglect has to try to cash in on his daughter’s good fortune.

The father of the soon-to-be royal bride couldn’t resist cashing in, doing several photoshoots with a paparazzi agency ahead of the wedding. The news reports of this provoked a negative reaction, predictably, except Tommy Boy was too greedy or dumb to predict it, and now he says that he will not attend because he does not want to embarrass Meghan or the royal family.

Too late!

Are there really people who think this is legitimate criticism?

I suppose there are, but wow.  A politically active genealogist named Jennifer Mendelsohn—she’s an idiot, by the way—spends her time digging into the ancestry of critics of illegal immigration and illegal immigrants to prove they are hypocrites, or something. Her latest target is Fox News’s Tomi Lahren (I am not a fan) and Mendelsahn really seems to think she has uncovered a “gotcha!,” tweeting…

Except the 1930 census says Tomi’s 3x great-grandmother had been here for 41 years and still spoke German. Her 2nd great-grandmother had been here for 10 yrs. Spoke no English. Her great-grandfather’s 1895 baptism from MN? Recorded in Norwegian…But as long as people like Lahren continue to push a specious agenda that suggests today’s immigrants are somehow wholly different from previous ones, I’ll keep showing just how alike they really are.

I really do think the wretched quality of thought here is more characteristic of most illegal immigration activists than people are willing to admit. I’m sure you can do this analysis yourself, but…

  • Illegal immigrants are not the same as legal immigrants. That what was once legal is no longer doesn’t make what the legal immigrants did in 1900 wrong, or what illegal immigrants doing now right.
  • There is nothing hypocritical about a citizen with immigrants in their lineage condemning illegal immigration. Indeed, there would be nothing wrong with someone with illegal immigrants in their family doing the same. If my great, great grandfather was a pirate, I can still oppose piracy. If I exist because my great-grandmother was raped, there is nothing wrong with my opposing rapists.
  • Did I mention that Mendelsohn is an idiot?

Just wanted to make sure.

Best rejoinder to her tweet: “Now do Elizabeth Warren!” Continue reading →

Morning Ethics Warm-Up, 5/15/2018: Alito Gets One Right, Ellison Deceived, And An Ancient, Unethical Tactic Works Once Again…

/ Jack Marshall / 24 Comments

To a glorious morning, Ethics-Lovers!

1. Bad Alito, Good Alito.  As I briefly noted yesterday (and hopefully will do in detail today), Justice Alito authored an unethical and embarrassing dissent defending a lawyer who deliberately betrayed his client by telling the jury that he had killed someone his client denied killing. Bad Alito. However, the arch-conservative jurist also authored the majority opinion in Murphy v. National Collegiate Athletic Association, in which the SCOTUS majority struck down a virtuous but unconstitutional law, and did so clearly and well.

These are, I think, my favorite Supreme Court opinions, where the Court ignores the motives and objectives of a law and simply rules whether the legislature is allowed to behave like that. I don’t know, but I would guess that most of the majority feel the way I do about organized sports gambling: nothing good can come of it, and a lot of harm is inevitable. One they get the green light, I’m sure that as many states will take over sports gambling for its easy revenue as now prey on its poor, desperate and stupid with their state lottery scams. Everyone involved–sports, fans, athletes, states, the public’s ethical compass—is going to be corrupted by letting the sports betting genie out of its bottle: just watch.

Nevertheless, the Professional and Amateur Sports Protection Act, a 1992  law known as PASPA, should have been struck down decades ago; I’d love to know why it took so long. No, it did NOT ban sports betting, though this is what far too many news reports tell you. Congress can ban sports betting directly if it chooses to, as it is interstate commerce. This isn’t in dispute. What it did in 1992, however, was to order states not to pass laws states have a constitutional right to pass. The distinction matters. From SCOTUS Blog, which is usually the best source for analysis of these things:

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…

…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

…The court also rejected the argument, made by the leagues and the federal government, that the PASPA provision barring states from authorizing sports betting does not “commandeer” the states, but instead merely supersedes any state laws that conflict with the provision – a legal doctrine known as pre-emption. Pre-emption, the majority explained, “is based on a federal law that regulates the conduct of private actors,” but here “there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” which “is exactly what the anticommandeering rule does not allow.”

Got it.

Good decision. Continue reading →

McCoy v. Louisiana

/ Jack Marshall / 30 Comments

Today the Supreme Court ruled in favor of Robert LeRoy McCoy, who was convicted of three counts of murder after his lawyer refused to follow his instruction and plead not guilty as he directed. I had predicted that his convictions would be over-ruled; I also wrote,

“If the Supreme Court does anything but overrule Louisiana in this case by a 9-0 vote, I may turn in my law license in exchange for a free Whopper at Burger King.”

Well, the vote wasn’t 9-0. I think instead of turning in my license, I’m going to turn in my respect for the so-called conservative wing of the Court. The majority opinion was authored by Justice Ginsberg, with Kagan, Sotomayor, Breyer, Roberts, and Kennedy concurring. Two of the conservatives concurred in a dissent authored by Alito: Gorsuch and thomas.

I haven’t had time to read it as carefully as I have to to do a thorough analysis, but I read it well enough to flag it as an embarrassing collection of rationalizations. While the majority opinion interprets a straightforward case according to what is significant about it—a lawyer pleaded guilty for him when his client demanded that he plead non guilty, thus making the conclusion unavoidable, Alito resorts to desperate excuses. Well, this kind of case isn’t likely to happen again. So what? A man was robbed of his Sixth Amendment rights! His story was ridiculous. So what? If that’s his story, he has the right to tell it. The lawyer was placed in a tough situation by a client whose claims were unbelievable. The jury decides who to believe, and a defendant has the right to let them do that. McCoy’s lawyer didn’t believe him. So what? Welcome to criminal defense work. McCoy was going to be convicted anyway.

What????

I can’t believe a Supreme Court Justice is making these arguments. So what? The principle of the rule of law is that it is vital that the defendant, if he is convicted, is convicted the right way, constitutionally. The conduct of McCoy’s lawyer was indefensible under the ethics rules, and the Constitution.

Reading the whole opinion and the dissent is revealing, and not in a good way. The majority opinion shows us that the Supreme Court can’t say the sky is blue without making the case in the mots turgid way possible. This opinion should have been a few pages at most.

The dissent lets us know that Justices Alito, Gorsuch and Thomas look for minuscule fragments of justifications to avoid doing the right thing.

 

Morning Ethics Warm-Up, 5/14/2018: Another Rushing Around In A Hotel Room Getting Ready For A Seminar Edition…

/ Jack Marshall / 71 Comments

Good morning from Boston...

…where I always feel at home! I’m here for the morning, talking to young, newly minted Massachusetts lawyers about ethics.

1. This is a big deal, though only lawyers will care. Finally, California has ditched its confusing, multi-source (some ethics rules were laws, some were regulations), antiquated legal ethics rules, and became the last of the jurisdictions, including D.C., to adopt the American Bar Association’s template for legal ethics guidance. Yes, in one area, if not the most important ones, California is moving closer to the rest of the country! There is hope!

2. Ally’s lament. Ally Sheedy, whom you might recall from “War Games” and “The Breakfast Club,” is one of Hollywood’s more articulate and thoughtful performers. She recently penned a post condemning Hollywood sexism, and its effect on her career. Essentially the essay amounts to a complaint that Hollywood is obsessed with appearances and, with women, sex appeal.

I like Sheedy, and I was pre-inclined to respect her observations (which are certainly accurate), but I have to admit that unsympathetic blogger Amy Alkon has a point. She writes,

“..professional actress Ally Sheedy takes it upon herself to lament the looks-driven reality of Hollywood — which is kind of like lamenting how in professional baseball, somebody’s always throwing a ball your way. …This is the movies, dear, not the genetics lab. Her entire essay is an example of intrasexual competition — criticizing and trying to change the standards of female competition by one who falls a bit short of them.Because so many people are so ignorant of our evolved psychology and in denial of biological sex differences (and the psychological sex differences that come out of them), they don’t get that there is pressure on men, too, to meet women’s differing mating priorities.As for those differing priorities, well…you don’t see men writing essays about how rotten it is that you can’t get a hot girlfriend (or probably any girlfriend) while unemployed and sleeping on a couch in your grandma’s basement.”

Yikes. And they say I’m tough… Continue reading →

Althouse’s Commenters Delineate A Trend

/ Jack Marshall / 15 Comments

Is something in the etho-cultural air? I wonder. Suddenly hints that patience with the resistance/progressive/Democratic/mainstream media assault on the Presidency, democracy, fairness, honesty, civic discourse and the rule of law is running out even with typically left-leaning citizens are turning up in multiple venues all at once. This is, of course, gratifying here at Ethics Alarms, since I have regarded this as an ethics crisis since 2016.

Fascinating evidence can be found in the comments to a recent post by Ann Althouse, in which she pointed to a res ipsa loquitur piece in Politico, “‘What Happened to Alan Dershowitz?’,  which I would summarize as “Whatever could have possessed Alan Dershowitz to make him opt for objectivity, principles and integrity at a time like this?” Ann, as she frequently does, didn’t comment substantively on the essay, deciding instead to make an arch observation while pointing the way for her readers. She flagged what she called “the most obvious quote” in the essay: “Maybe the question isn’t what happened to Alan Dershowitz. Maybe it’s what happened to everyone else.” Of course, nothing happened to Dershowitz. He’s doing what a lawyer, an analyst and a trustworthy pundit is supposed to do: apply the same standards to everybody; not let emotion rule reason, and when all around him are losing their heads and blaming it on him, keeping his own despite temptations to follow the mob.

Ann’s readers distinguished themselves in their reactions. I wonder if the Democrats are paying attention. They are fools if they don’t.

Read as many as you can. Here’s a representative sample: Continue reading →

An Ethics Riddle: What Do Starbucks And The University Of Virginia Have In Common?

/ Jack Marshall / 9 Comments

They both called the cops on someone who was violating a policy. Only one of them, however, was accused of racism.

Bruce Kothmann, a University of Virginia alumnus, read aloud from his Bible on the steps of the school’s Rotunda this week, so university police came make him stop. He did stop, because he didn’t want to be arrested. For such public speech is no longer allowed at the public university. The Rotunda is not one of the places the university has designated for public speech by outsiders. Kothmann was on to campus because his daughter had just finished her sophomore year, but was reading from his  Bible with him to challenge the school’s  policy limiting speech on campus.

A terse reader comment on the story said, “This is basically what happened at Starbucks.” The comment is correct.

Would UVA have sent the police to silence a black parent? My guess: no, and if it had, the school would be grovelling in the dust right now, begging for forgiveness. Unless the school could quickly point to a white transgressor who got the cops called on him, a charge of race bias would be devastating, and, of course, effective.

You recall the Starbucks episode: I covered it here. Two African Americans were informed of a Starbucks policy that required those using the facilities to be customers. The men refused, the manager called the police claiming trespass, and the rest is ugly, race-baiting history. The two men could have left just as Mr. Kothmann agreed to stop reading, but that’s just moral luck. The reader was right: the episodes were the same….except for the race of the violator involved.

The Ethics Alarms position is that both policies, that of the university and the old Starbucks policy, are reasonable, with the Starbucks policy being the more  defensible, since UVA is a public university and has the First Amendment to contend with. Never mind: the news media and the social justice social media mob have little interest in a white man being stopped by police from reading that old rag, The Bible, but if two black men violating a private business’s reasonable policy have that policy enforced against them, that’s intolerable.

We have the birth of a new racial privilege, now extending beyond police shootings (a white cop can safety shoot a threatening white suspect, but not a black one) to other forms of previously justifiable conduct. Continue reading →

Comment Of The Day: “Ethics Quiz: The Child-Molesting Pitcher”

/ Jack Marshall / 16 Comments

I think my favorite Comments of the Day are those where a reader is moved to relate a personal experience. That is what Zoltar Speaks!, currently on an Ethics Alarms sabbatical—I can relate—does here, in response to the Ethics Quiz about the star college who either was, or was not, a child molester in his teens.

Incidentally, the poll results on that quiz revealed tat only 25% of those polled felt that his guilty plea should affectt his college baseball career now.

Here is Zoltar’s Comment of the Day on the post, Ethics Quiz: The Child-Molesting Pitcher:

I’ve been waiting to share this since I read this blog post and I just got the “okay” to share this story about an old friend. If this reveals my identity to people that have knowledge of these events please respect my choice of anonymity.

I can tell you that sometimes the accused get terrible, terrible legal advice, my friend was one that got such terrible advice.

Many, many, many years ago my friend was advised, by his attorney and a prosecutor, to plead guilty to a statutory-rape charge about six months after he turned 18 for having sex with a minor girl. The thing is that he never had sex with her but yet he was being accused of it both legally and he was being smeared in the public. He had actually only been on a few of dates with her when we figured out she was a minor, if I remember right she was about to turn 17 – she looked older. My friend dumped her, it was a public rejection revealing that she was lying about her age and she made quite a scene – I was there.

The attorney that advised him to plead guilty was fired and he got an attorney that would fight for him. In the end it turned out that the girl had proven herself to be a pathological liar and this was just one in a long line of big revenge lies she had concocted over the years. It was really interesting that her mother was the one that got directly involved in this case and due to her involvement it was eventually proven by a medical doctor that the girl was still a virgin. I was told that the prosecutors face fell off the front of his head when the evidence was presented to him. The case was dropped before it ever got to court but the accusation stuck in the minds of the public. It’s amazing how that accusation of raping a minor stuck like glue on my friend, people presented the accusation as some kind of evidence that he was a terrible person even though it was completely false. He ended up moving from the area as a result of having to prove himself innocent over and over again. I’m sure there are still people that would think he is a rapist or worse just because he was accused.

You would think that moving away was pretty much the end of the story; nope, there’s more.

A few years after this took place my friend was in a bar a couple of states away from where this all had taken place and ran into this girl, now an adult, with her boyfriend. He didn’t know she was in the bar until her boyfriend confronted him with the accusation that he was the guy that had gotten away with raping her when she was a minor. My understanding is that it came very close to a physical confrontation but he was able to convince the boyfriend to allow him to prove his innocence with actual documentation that he had saved (his attorney advised him to keep everything related to the case in a safe place). You’ll never guess how he got the guy to allow him to prove his innocence; this pathological liar girl had changed her name and that came out in the confrontation and the boyfriend hadn’t known anything about that. The next day, my friend allowed the boyfriend to read the documents plus he got to see photos of the girl as a teenager to prove it was the same girl. He learned that she was a pathological liar, actually thanked my friend for helping him dodge a bullet, and he dumped her. The last I heard anything about the girl, she was in a prison somewhere out west. Continue reading →

Google And The Bail Bonds: When Virtue-Signaling Goes Horribly Wrong

/ Jack Marshall / 18 Comments

..or, in the alternative, go ahead and BE evil, but make sure you’re pretending to be progressive while you’re doing it.

“With great power comes great responsibility not to be reckless and stupid.”

Google recently announced this policy change. See if you can spot what is wrong with it: I shouted, “What???” pretty much through the second paragraph.

At Google, we take seriously our responsibility to help create and sustain an advertising ecosystem that works for everyone. Our ads are meant to connect users with relevant businesses, products and services, and we have strict policies to keep misleading or harmful ads off of our platforms—in fact, we removed 3.2 billion bad ads last year alone. Today, we’re announcing a new policy to prohibit ads that promote bail bond services from our platforms. Studies show that for-profit bail bond providers make most of their revenue from communities of color and low income neighborhoods when they are at their most vulnerable, including through opaque financing offers that can keep people in debt for months or years. We made this decision based on our commitment to protect our users from deceptive or harmful products, but the issue of bail bond reform has drawn support from a wide range of groups and organizations who have shared their work and perspectives with us, including the Essie Justice Group, Koch Industries, Color of Change and many civil and human rights organizations who have worked on the reform of our criminal justice system for many years. According to Gina Clayton, executive director of the Essie Justice Group, “This is the largest step any corporation has taken on behalf of the millions of women who have loved ones in jails across this country. Google’s new policy is a call to action for all those in the private sector who profit off of mass incarceration. It is time to say ‘no more.’” Enforcement of this policy will begin in July 2018. This policy change is part of our ongoing efforts to protect users on our platforms.

Maybe this isn’t as stupid as it appears. Maybe Google is trying to protect its users by ensuring that potential predators accused of crime rot in jail while they are awaiting for trial because they don’t have access to bail.  Now that would be sinister and cruel, but not idiotic. Maybe? Perhaps?

No, this is just idiotic.

Prof. Alex Tabarrok, the Bartley J. Madden Chair in Economics at the Mercatus Center and a professor of economics at George Mason University, explains:

Bail bonds are a legal service. Indeed, they are a necessary service for the legal system to function. It’s not surprising that bail bonds are used in communities of color and low income neighborhoods because it is in those neighborhoods that people most need to raise bail. We need not debate whether that is due to greater rates of crime or greater discrimination or both. Whatever the cause, preventing advertising doesn’t reduce the need to pay bail it simply makes it harder to find a lender. Restrictions on advertising in the bail industry, as elsewhere, are also likely to reduce competition and raise prices. Both of these effects mean that more people will find themselves in jail for longer.

And may I add, with respect, “Duh.” You don’t begin reforming the bail system by making it harder for people who need bail to get it….that is, you don’t do that unless you have a cranial vacuum.  Moreover, Prof. Tabbarrak has the same message based on his experience with bail bond companies as I did when I had criminal defendants as clients—and when I have had to help family members and friend deal with the bail system: Continue reading →

Morning Ethics Warm-Up, 5/11/2018: The Yankees Get Nasty, The Times Keeps Distorting, Rudy Is Sacked, And Dangerous Advice From An HR Expert

/ Jack Marshall / 7 Comments

A lovely May morn to all!

1 As I have always said, the Yankees are evil. Most serious baseball fans,  and presumably all Baltimore Orioles fans, remember how in the 1996 ALCS play-offs,  a young New York Yankees fan named Jeffrey Maier turned what should have been a crucial out for his team into a game-tying home run by Derek Jeter in the 8th inning of Game 1, by reaching over the fence and catching the ball before it could fall into O’s rightfielder Tony Tarasco’s glove. This was interference, but it was before the challenge and replay rule, and the umpires, as is too often the case, missed the play. The Yankees won the game, the series and the World Series, and the Yankees and their city celebrated Maier as a hero—for, in essence, cheating on their behalf. The rules announced at the beginning of each game dictate that such conduct will result in an offending fan being thrown out of the stadium, but never mind: the ends justify the means, consequentialism, moral luck, double standards, hypocrisy…readers here know the litany. Misconduct was rewarded and extolled because everyone loved the result. New York, New York!

Now let’s go forward 22 years to last night’s tense game between the Yankees and their eternal rivals, the Boston Red Sox, also in Yankee Stadium (the new version.) The Yankees, as they had the previous two nights, rallied late against the hapless Boston bullpen and tied the game, 4-4, in the 7th inning. In the Sox 8th, J.D. Martinez hit a lazy fly that just got over the short right field fence and leaping gargantuan Yankees rightfielder Aaron Judge’s glove, into the outreached glove of another young fan, except that this one did not reach over the fence, and did not, as the replay showed clearly, interfere with Judge in any way.

Ah, but the home run he caught was hit by a Red Sox player, and put the Yankees behind in the game, after the fans’ hopes had been raised.

Yankee Stadium security hauled the fan out of the stadium.

The Red Sox won the game.

Good.

2. The Good Illegal Immigrant on stage…just to remind us of how pervasive false narratives are..I have kept an April 10 New York Times feature around just to raise my blood pressure in case I need a jolt. The article hails “Miss You Like Hell,” a new musical produced at Manhattan’s Public Theater. The show is about the pain and suffering endured by people who are in the United States illegally, having presumed to take what they want in defiance of our laws and policy, but no sense of wrongdoing is even hinted at in the story. The Times uses the deceitful cover-phrase “undocumented immigrant,” which was devised deliberately to blur the illegal immigration issue.

Today, as has been increasingly the case throughout the news media, a front page Times article uses “immigration” interchangeably with “illegal immigration.” This, of course, advances the lie that the those who oppose illegal immigration—that is, those who oppose law-breaking without consequence as national policy–are anti-immigrant.

This same story was headlined by the Washington Post, “Trump unloads on Homeland Security secretary in lengthy immigration tirade.” Continue reading →

Regarding The Stormy Daniels Affair

/ Jack Marshall / 125 Comments

Ethics Alarms has not spent a lot of time or space discussing the Stormy Daniels scandal, and the reason is quite simple. I don’t care about Stormy Daniels,  and I don’t care what the President did or didn’t do with Stormy Daniels before he was President. What ever it was, it was not a crime, nor did it take place while he was President of the United States. As a result, the excessive coverage of this story is one more example of the press doing whatever it can to undermine and diminish this President, out of personal and partisan antipathy. The episode is embarrassing to the nation, and harmful as well, but no other President would have his pre-candidacy conduct obsessively covered like this. No talk late night talk show hosts induced any of Bill Clinton’s past conquests to dish on national TV, with the express desire of humiliating him and the First Lady. CNN’s carpet-bombing with this story is Exhibit A on how far Ted Turner’s promising baby has descended into squalor.

I assume that the porn star was paid hush money by sleazy Trump fixer Michael Cohen, with or without Trump’s knowledge, but probably with.  This is sordid, but not illegal or even unethical. It is also not unusual. I don’t want to speculate on how many Presidential candidates or their staffs have paid large  sums to women with whom they had adulterous or otherwise undignified relationships, but I’m sure, even outside of the secret sagas of Clinton and the Kennedys, it is a very large number. That Donald Trump had sexual adventures with women either physically or morally like Daniels was a certainty years ago, even before the campaign brought to light his primitive attitude towards women generally, which itself should have shocked no one. He’s had three trophy wives, and presumably cheated on all of them. He bought the Miss Universe Pageant, which is a pretty obvious tell. Donald Trump has always embodied the life-style and attitudes of a spoiled playboy.

Thus this is yet another example of the “resistance,” and its disgraced ally, the news media, trying to unseat Trump by pushing the narrative that he’s really, really, really an unsavory character, as if that matters any more. They are unable to accept that this man whom they find so repulsive was elected anyway, and think that just repeating over and over and over again how repulsive he is to them will somehow undo his election or change anyone’s mind. Continue reading →