Law & Law Enforcement

Plan J From Outer Space, And Related Scary Tales

/ Jack Marshall / 20 Comments

All right, all right, “Plan J” is not really from outer space.  It’s really from the ever fertile mind of Democrats and the resistance, who are now dedicating their efforts on a new, weird, cultural theory to get rid of Donald Trump, one that has its dark routes in Salem, Massachusetts. Plan J—that’s my name for it, not theirs, as I explained here—isn’t quite as bizarre as the Ed Wood camp classic the headline evokes, “Plan 9 From Outer Space,” (If you’ve never seen it, shame on you: you can become culturally literate here) but it’s a lot scarier.

As it has been recently defined, Plan J holds that if  women, who must be believed, accuses a man of sexual harassment or sexual misconduct, no matter how long ago the alleged offense occurred, whether or not it relates to the accused individual’s current psoition,  whether there is any supporting evidence, whether the alleged incident or incidents were a criminal or a civil violation, regardless of how serious they were and regardless of whether the alleged offender denies the allegations or whether the accusations were known to those who placed him or her in their current position, the targeted individuals must be shunned, punished, and forced into virtual exile, if not erased from the culture entirely.

By establishing the new due process-bypassing, proportion-defying and fairness-erasing  social norm, those who have seen their Plans A through I (also enumerated here) either fail miserably or founder have new hope that they may  yet force the President of The United States to resign, thus bypassing those messy and inconvenient things called “elections.”  In order to set this bold new social norm, every celebrity or powerful person who even vaguely fits a Trumpish template regarding accusations of sexual misconduct must be hounded, attacked, derided or shamed.

It’s really remarkable. Of course, Plan J only became feasible as a result of the Harvey Weinstein scandal, and the subsequent rush of #MeToo-ers to see who they could take down, rightly or wrongly.

There is a certain perverted brilliance to Plan J. Sexual harassment is a filthy, unethical perk of the powerful that had been allowed to harm too many for too long, and was an accepted feature of too many cultures, like government, business, and show business.  Thus the pent-up fury sparked by the revelations about Weinstein was justified. But as with The Terror that followed the French Revolution, the legitimate anger and determination to reform the culture also created a different kind of power that corrupted the reformers. The ability to destroy with a pointed finger is intoxicating.

In many cases, the results have been beneficial: the identification of corrupt cultures and the unmasking of genuine workplace predators like Weinstein, Kevin Spacey, and Matt Lauer. In other cases, the fates of the accused have seemed wildly disproportionate to the offenses, although often the reaction of the accused have hastened their demise. The tally of individuals taken down by this frenzy now totals 97 men and one woman—Wait! Make that 98 men: Jerry Richardson, the owner of the NFL’s Carolina Panthers, announced that he was selling his team hours after the NFL announced that it would be investigation sexual misconduct claims against him.  Thus Plan J was born: Hey! Why not President Trump?

If due process and sufficient evidence weren’t required to destroy so many others who once had power and influence, surely Sen Kristin Gillibrand’s insistence that as long as she and enough Trump-hating journalists found his accusers “credible,” the fact that none of the alleged acts were criminal, that they did not occur while he was in office and could not possibly be impeachable, and the fact that he was elected with the public’s full knowledge of the allegations were no longer a bar to an effort to force him to resign.

Plan J!

It

Just

Might

WORK!

There are logical and ethical problems that have to be steamrolled in the process, however, if “the resistance’s” dream is to come true. For the principle that any alleged sexual misconduct that a elected official may have engaged in before being elected to become the rule, a lot of lesser figures have to be sacrificed, along with a lot of tenets of basic fairness. For example: Continue reading →

The Unprepared Judicial Nominee [Updated]

/ Jack Marshall / 12 Comments

 

Matthew S.] Petersen, a lawyer serving on the Federal Election Commission, was one of five President Trump judicial nominees to be questioned by the Senate Judiciary Committee last week. Senator John N. Kennedy, a Republican from Louisiana, subjected Petersen to questions regarding basic litigation law, such as the Daubert standard, which has to do with qualifying expert witness testimony, the definition of a motion in limine, and several other bits of information a junior litigator would have to have in his memory banks. The potential judge told the Senator that he had never tried a case or argued a motion in court. He said he last read the Federal Rules of evidence in law school. “I understand that the path that many successful district court judges have taken has been a different one than I’ve taken,” Petersen said.

Naturally, being a Trump nominee, Petersen is being widely mocked in the news media and by Democrats. Some legal experts have been more sympathetic, like Judge Wayne R. Andersen, who was a federal judge in the Northern District of Illinois for nearly 20 years. He told reporters  that there was a continuing debate within the legal profession about the qualifications required of a trial judge, saying, “Anyone who steps to the federal bench lacks a huge amount of federal experience necessary to do the job,” and that Senator Kennedy’s questions, while fair, “would eliminate 80 percent of the nation’s lawyers and many of the most talented lawyers.”

Lawyer/Blogger John Hinderaker wrote in part,

The lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators. Do we really want to say that all of these non-litigators–the majority of lawyers–are unfit to be trial judges?…does it mean that one of my non-litigator partners would be disqualified from such an appointment, no matter how good a lawyer he or she might be? I don’t think so.

… Newly-appointed judges attend “judge school,” where they are taught the finer points of the rules of evidence….Most lawyers who are appointed to the bench in both federal and state courts have backgrounds in litigation. No doubt that is appropriate. However, it is by no means rare for non-litigator lawyers to be appointed, or win election, to the bench. In my opinion, that is a good thing. I don’t see why a minority of lawyers–litigators–should have a monopoly on the bench. I don’t know whether Matthew Petersen will make a good judge or not. But in my view, he doesn’t deserve to be ridiculed because his highly-successful law career has been conducted outside of the courtroom.

I agree; he shouldn’t be ridiculed for that. Continue reading →

Morning Ethics Warm-Up, 12/17/2017: Sick Of Train Wrecks, Sick Of “Baby, It’s Cold Outside!,” Sick Of Being Lied To. Merry Christmas!

/ Jack Marshall / 56 Comments

Good Morning, And Merry Christmas!

(and no, my tree isn’t decorated yet. As usual, there were complications…)

1 “You’re one of THEM, aren’t you?” Curse everyone on all sides of the political spectrum who have, by shear repetition, turned the mere act of saying “Merry Christmas!” into a presumptive partisan greeting. A recent study indicates that about 90% of the public celebrates Christmas, not some amorphous holiday, either in its religious or secular form on and around December 25th. There should be nothing malign about the salutation at all, and yes, the polite and pleasant response to “Merry Christmas!” is “The same to you!” or “Merry Christmas!” Yesterday, I received a silent glare and a scowl from a merchant to whom I gave the happy wish, and he was selling Christmas tree stands!

2. Not AGAIN! This is one of those periods during a year when the same ethics issues hang around like a bad odor, and I am faced with the choice of intentionally avoiding them, even though they continue to make news and to be the topic of conversation online and on TV, or to keep covering them no matter how bored I get. In fact, all of 2017 feels that way. Every day now, I have to face a new swerve of the Harvey Weinstein Ethics Train Wreck, and its cultural, ethical, and political implications. (Chris Matthews! Rep. Bobby Scott!). The news media disgraces itself daily in its partisan hatred of the President of the United States. “The resistance” and Democrats (but I repeat myself) continue to unethically push the nation into a constitutional crisis as their remedy for the longest loser’s tantrum in recorded history, and, yang to their yin, President Trump continues to be as unpresidential in his manner, words and actions as I thought he would, but hoped he wouldn’t, feeding the flames of division.

3. “Baby, It’s Cold Outside!”  Here is an article protesting the movement to “ban” (figuratively, not literally), the seasonal duet “Baby, It’s Cold Outside”  for “being insufficiently PC in the sexual assault/harassment realm.” Ethics Alarms called the song “date-rapey” two years ago, so while I don’t exactly want to ban the thing, I am sick of hearing it on Christmas playlists. On Sirius-XM’s “Holly” station, I’d estimate that over 50% of the “Holiday songs” have to do with sex (none have to do with the religious holiday, by design), and I blame “Baby, It’s Cold Outside,” which on the alternative Christmas channel, “Traditions” —where every song is sung by someone who is dead, with the exception of a few hangers-on like Tony Bennett and Johnny Mathis, either of whom could drop any second—“Baby, It’s Cold Outside” is played every hour, sometimes more than once. Pearl Bailey (dead), Steve and Eydie (dead and dead), Sammy Davis Jr, and Carmen MacRae (both dead), Dean Martin (dead). Writes the blogger, Continue reading →

Compassion! Crime! Betrayal! Law vs. Ethics! Illegal Aliens! Christmas Spirit! The Golden Rule! Five Golden Rings! (Okay, Only Three Rings, And One Was Junk, But Still…) The ‘Awwwww Factor’! Could This Be “The Greatest Ethics Quiz Ever Asked”?

/ Jack Marshall / 27 Comments

[Special thanks to my friend (and the inventor of The Three Circles) lawyer/legal ethicist John May for alerting Ethics Alarms to this one.]

Sandra Mendez Ortega, a 19-year-old maid, stole three rings worth at least $5,000 from a house she was cleaning in Fairfax City, Virginia. Lisa Copeland, the client of the cleaning service, discovered her engagement and wedding rings were missing from the container where they were usually kept. The two rings were appraised at $5,000 in 1996, and a third less valuable ring was taken along with them. Fairfax City police  interviewed the three women who had cleaned the home, and they all denied seeing the rings, much less stealing them. Ortega, however, subsequently had second thoughts, and confessed to the theft. She told her boss that she had the rings and turned them over to him. He contacted the police,   Mendez Ortega confessed to them as well, saying she returned the rings after learning they were valuable. (Thus she only took them because she thought they weren’t valuable. Okaayyyy…) The police told her to write an apology letter to Copeland, in Spanish, in which she said in part, “Sorry for grabbing the rings. I don’t know what happened. I want you to forgive me.”

(I’m sorry, but I have to break in periodically so my head won’t explode. ” I don’t know what happened?” She knows what happened! She stole the rings because she thought she could get away with it.)

Copeland says she has never seen that letter, and that Mendez Ortega has never apologized to her in person. The maid was charged with felony grand larceny. At the trial, the jury found her guilty. (If she had confessed and was remorseful, why did she plead not guilty?)

But we are told that they felt sympathy for the defendant, who was pregnant with her second child, during the sentencing phase. “The general sentiment was she was a victim, too,” the jury foreman, Jeffery Memmott, told the Washington Post. “Two of the [female jurors] were crying because of how bad they felt.”  Although the  jurors convicted the maid of the felony, they agreed among themselves that it was just a “dumb, youthful mistake.” So they decided that her punishment would be only be her fee for cleaning the house the day of the theft, $60. Then they took up a collection and raised the money to pay the fine, plus and extra $20.

(Yes, she made money on the transaction. Crime pays.) Continue reading →

The Ohio Down Syndrome Abortion Bill: Now We’ll Find Out How Smart John Kasich Really Is

/ Jack Marshall / 22 Comments

The Ohio State Senate just passed a bill that  prohibits women from aborting a fetus diagnosed with Down syndrome. It will become law if Republican Governor John Kasich signs it—an astoundingly bad and probably unconstitutional law.

It criminalizes abortion if the physician has knowledge that the procedure is being sought due to a diagnosis of Down syndrome. Performing an abortion under such conditions would result in doctors losing their medical licenses in the state and being convicted of a fourth-degree felony charge. The mothers would not face criminal charges.

What? WHAT? Do I understand this correctly? It will still be legal to abort a completely normal and healthy fetus, but a gestating child with the abnormality that ensures a mental disability will be protected?

Based on this logic, why wouldn’t Ohio seek to similarly protect embryos with other defects, like spina bifida? Missing limbs? Conjoined twins? By all means, let’s pioneer reverse eugenics in the United States. That will turn out well.

Ohio is the third state to pass a law outlawing abortions due to fetal anomalies, Indiana (signed by Mile Pence!) and North Dakota doing it previously. The Indiana law was struck down by a U.S. District Judge in September; I can’t imagine why all three wouldn’t be doomed for the same reason: the right to abortion doesn’t only apply to mothers carrying normal fetuses.

What kind of defective minds devise such laws? Do they identify with the fetuses they are saving?

Kasich hasn’t hinted whether he was inclined to sign this incredibly unethical and demented bill into law, but when he was asked about a similar bill in the Ohio House, he had called it “appropriate.”

Oh-oh.

Morning Ethics Warm-Up, 12/15/ 2017: Wonder Woman, Plan J, and Concussions? What Concussions?

/ Jack Marshall / 17 Comments

Goood Morning, Wonder Woman!

(You might want to skip item #3…)

1  How the NFL defines good leadership..The news today that the most recent result of  examinations of deceased former football players’ brains shows 99% of them with CTE puts an especially harsh light on the NFL’s new contract with Commissioner Roger Goodell, who was promised hundreds of millions of dollars  to serve in the same role he has botched for another seven years. Well, botched is a relative term, I suppose. True, Goodell has made it clear that his league is the least ethical, most venal, and most brutal sports organization on earth. Over his 11 year tenure so far, he proved that the league only regards its star behemoths beating up women after there is a public outcry, then tosses away due process to levy illegal punishments for show. Goodell first denied that the science showing that his game’s routine and unavoidable concussions were deadly, then had his lawyers negotiate an unconscionable low-ball settlement with the desperate families of former players his modern day gladiatorial combat had crippled (it was declared so by a judge, and thrown out), and now says the league is addressing the problem, which it isn’t. Meanwhile, every game, play by play as fans cheer, more young men are  sent on their way to a premature, drooling death by brain damage.

Goodell’s biggest star, Tom Brady, and most successful coach, Bill Belichick, are smug cheaters. For the last year, fans paying three figures a game for their seats have had to watch their National Anthem marred by various player protests about..something. Ratings and attendance have fallen; polls show that the NFL is the most disliked sport in America, which it should be, since it kills people,  promotes felons and cheaters as heroes, and abuses its fans. But this isn’t considered a botch by the Commissioner, says the New York Times, because “during his tenure as commissioner…Goodell has helped team values skyrocket, and the owners are betting that will continue under his leadership.”

That sentence explains everything, doesn’t it?

2. Welcome to “the resistance” Plan J.  Review: Plan A was to reverse the election by hijacking the Electoral College. Plan B was pre-emptive impeachment. Plan C was the Emoluments Clause. Plan D was “collusion with Russia” (The New York Times, to give credit where it is due, actually created a chart to explain this one, and if it isn’t obvious to you how pathetically weak the case is, you played NFL football…), Plan E is”Trump is disabled because he’s a narcissist and a Republican, so this should trigger the 25th Amendment.”, Plan F, the Maxine Waters plan, is to just impeach the President because she really, really doesn’t like him, Plan G is “The President obstructs justice by firing incompetent subordinates,” Plan H is “tweeting stupid stuff is impeachable,” Plan I is “Let’s relentlessly harass him and insult him and obstruct his efforts to do his job so he snaps (see E) and does something really impeachable.”

Senator Kirsten Gillibrand unveiled Plan J, since the others are absurd, when she demanded that the President should resign now for unproven allegations of non-crimes, when none of the misconduct occurred during his tenure as Presidency.  This is impressive, because it is just as ridiculous and desperate as the other plans, and I thought they had exhausted the possibilities. At a Congressional hearing examining Deputy Attorney General Rod Rosenstein  Texas Democratic Rep Sheila Jackson Lee insisted that women who accused non-President Trump of sexual harassment can report it to the FBI.  That’s right: now the FBI should be investigating illicit kisses, “groping,’ and my personal favorite, walking into a Miss USA dressing room where the contestants might be in various states of undress.

These aren’t crimes, they aren’t prosecutable, and they aren’t even close to the FBI’s mission and duties. Continue reading →

Ethics Quiz Of The Day: The Two-Way Peanut Butter Treat…Ick Or Ethics?

/ Jack Marshall / 21 Comments

Described in news reports as a “baffling oversight,” Canada only bans bestiality if it involves penetration. This means that there is a lot of oral sex going on between humans and moose, or something, so while reminding her colleagues that a Canadian sex freak  used this very loophole to escape conviction last year, Calgary MP Michelle Rempel has introduced Bill C-388 to add one line to the Criminal Code defining bestiality as “any contact by a person, for a sexual purpose, with an animal.”

This of course, would mean that doing business with Harvey Weinstein would be illegal in Canada.

Said Rampel in a statement, “I am disturbed that the government has not yet corrected this glaring void in our criminal code….This is a non-partisan issue.”

Ah, but is it a stupid issue? Or an ethics issue?

Your Ethics Alarms Ethics Quiz of the Day is this vital question:

Is it unethical to spread peanut butter on your genitals and then encourage your pet Newfoundland to lick it off?

Continue reading →

Comment Of The Day: “Comment Of The Day: “The Popeye,” From The Ethics Alarms Ethics Estoppel Files: … And My Epiphany About Investigative Reporting'”

/ Jack Marshall / 80 Comments

 

Arthur in Maine, who has kindly featured me on his radio show and actually given me sufficient time to explain things without being cut off, submitted the following discourse focusing on my embarrassingly slow-to-form realization that all investigative reporting into political matters had to be considered as manipulated to serve some political agenda by the news organization.

I’ll have some observations at the end, but first, here is AIM’s Comment of the Day on Comment Of The Day: ‘“The Popeye,” From The Ethics Alarms Ethics Estoppel Files: I Can Say The Republican Party Is Rotting…”, And My Epiphany About Investigative Reporting:

…Why are any of you – including Jack – surprised? Media is, first and foremost, a BUSINESS. It doesn’t sell news – it provides news as a mechanism for generating advertising (in the case of NPR, underwriting and/or listener) support.

The United States is one of the only so-called free nations that embraces the concept of objective media. In fact, the whole concept started in this nation – with Joseph Pulitzer (recognize the name?). In other words, the concept of objective media is an American conceit.

Pulitzer’s drive towards so-called “objective” media certainly raised standards, but it wasn’t due to the noble idea that newspapers – pretty much the only game in town at his time – should be objective. Pulitzer was the visionary who recognized that the way news was being reported was scaring off the advertisers, and the advertisers were way more important than the folks who plunked down a penny or two to buy a copy at the news stand.

American media at the dawn of the 20th century wasn’t dissimilar to the way it is today – and much like it has ALWAYS been in nations in which the media isn’t state-controlled. It’s rambunctious. It’s partisan. It wears its beliefs on its sleeve – both with regard to what it covers and the way it covers it. Continue reading →

Unethical Quote Of The Month, And A Bonus Kaboom: The New York Times Editors

/ Jack Marshall / 23 Comments

“But if your man is really innocent, what’s the worry?”

—The New York Times in an editorial, “Fox News v. Robert Mueller”

Yes, the New York Times really printed that, under its banner.

Well,

KABOOM!

There goes my head.

As much as I have learned to distrust the objectivity and motives of the New York Times, I did not expect the traditionally liberal paper to make a sinister argument typically associated with totalitarian regimes. This is nothing but a  rephrasing of the traditional “nothing to hide” rationalization for obtrusive state surveillance, as well as illegal police searches and abusive prosecutorial methods.

“If you’ve got nothing to hide, you’ve got nothing to fear” is such a cliché of oppressive state action that it has its own Wikipedia entry. It is often attributed to Joseph Goebbels or “1984,” though there is no documentation for either. It was uttered by villain Pius Thicknesse in “Harry Potter and the Deathly Hallows”:

“As your new Minister for Magic, I promise to restore this temple of tolerance to its former glory. Therefore, beginning today, each employee will submit themselves… for evaluation. But know this: you have nothing to fear if you have nothing to hide.”

In the film version of the novel, the actor (Guy Henry) playing Pius was cast to evoke Goebbels. (above).

Progressive writer Upton Sinclair used an inverted version in 1918 in “The Profits of Religion: An Essay in Economic Interpretation” (1918):

“Not merely was my own mail opened, but the mail of all my relatives and friends—people residing in places as far apart as California and Florida. I recall the bland smile of a government official to whom I complained about this matter: ‘If you have nothing to hide you have nothing to fear.'”

The statement adopted by the Times editors as well as the attitude behind constitute a rejection of democratic values and an endorsement of state sponsored fear and subjugation of individual rights. “It you are innocent, why worry?” literally stands for the proposition that one is guilty until proven innocent, which is an accurate description of the position of the Times, the mainstream media and “the resistance” regarding the baseless allegation of  “collusion” with Russia to steal the election from Hillary Clinton. In the context of the editorial, which dismisses legitimate questions about the objectivity and conflicts of interest among Special Counsel Robert Mueller’s team, the argument is especially disingenuous. If one is innocent, one shouldn’t worry if a biased team of lawyers is trying to find a way to make you look guilty? Continue reading →

Gender Bias And Legal Careers

/ Jack Marshall / 54 Comments

Studies show that although women have been entering the law in equal numbers to men for more than a decade, they make up just 23 percent of partners and 19 percent of equity partners. Why do so many women  leave the legal profession at what should be the height of their careers? Last month, more than 160 lawyers gathered at Harvard Law School in November for the ABA National Summit on Achieving Long-Term Careers for Women in Law to identify answers and plot a course to change the trends.

Sharon Rowen, a lawyer from Atlanta,  said her research showed three reasons women leave the practice of law: work/life balance, unconscious bias, and the pay gap. I wish I could have attended the discussion. I hope someone pointed out that seeking work/life balance is the major reason for the pay gap, and that it is not unreasonable to view that as a trade-off that is both fair and reasonable.  Rowan’s list also leaves off conscious bias that pervades society and clients regarding female lawyers, as well as law firm partners.

Iris Bohnet, professor of public policy at Harvard Kennedy School, said some women suffer from “success fatigue,” and leave “because of a work culture that forces them to minimize important parts of their lives.” They ask themselves, “Can I bring my whole self to work?” and “Is this a place where I can thrive?” What she is saying is that a lot of women don’t find the law enjoyable, and that its stresses, patterns and requirements are more accommodating to men than women. In other words, law isn’t fun for a lot of women, while men, because of the nature of males, are more tolerant of it than women tend to be. I wonder if any panelist had the guts to come right out and say that? I doubt it. I bet most of them would deny it, because it’s politically incorrect to admit any gender differences, unless they involve female superiority.
Continue reading →