Law & Law Enforcement

The Most Unethical Sentencing Fallacy Of All: Lavinia Woodward Gets “The King’s Pass”

/ Jack Marshall / 49 Comments

Oxford University student Lavinia Woodward, 24,  punched and stabbed her boyfriend in a drunken rage, then hurled a jam jar, a glass and a laptop at him. This, in the U.S., would be called a criminal assault, and maybe even attempted murder.  Ah, but British Judge Ian Pringle knows better. He agrees these acts would normally mean a prison term, but Lavinia is a star student, and wants to be a surgeon. He hinted that he would spare her prison time so that her “extraordinary” talent would not be wasted. As poor Lavinia’s barrister, James Sturman, argued, his client’s dreams of becoming a surgeon would be “almost impossible” if she had to serve time.

Well, we certainly mustn’t jeopardize a violent felon’s dreams.

This kind of reasoning is infused with The King’s Pass, also known as The Star Syndrome, the rationalization making the perverse unethical argument that the more talented, prominent, useful and important to society a miscreant is, the less he or she should be accountable for misconduct that nets lesser lights serious and devastating consequences:

11. The King’s Pass, The Star Syndrome, or “What Will We Do Without Him?”

One will often hear unethical behavior excused because the person involved is so important, so accomplished, and has done such great things for so many people that we should look the other way, just this once. This is a terribly dangerous mindset, because celebrities and powerful public figures come to depend on it. Their achievements, in their own minds and those of their supporters and fans, have earned them a more lenient ethical standard. This pass for bad behavior is as insidious as it is pervasive, and should be recognized and rejected whenever it raises its slimy head.  In fact, the more respectable and accomplished an individual is, the more damage he or she can do through unethical conduct, because such individuals engender great trust. Thus the corrupting influence on the individual of The King’s Pass leads to the corruption of others.

Judge Pringle is taking the King’s Pass/Star Syndrome to a new low: he’s arguing that Lavinia should receive special treatment based on how valuable to society she might be, given enough immunity from the consequences of her own conduct.  Continue reading →

Responsible And Necessary: The Appointment Of A Special Counsel

/ Jack Marshall / 40 Comments

The Justice Department appointed Robert S. Mueller III (above), a former F.B.I. director, as special counsel to handle the Russia probe.

I am reading conservative pundits fuming over this development for a number of reasons, some of them valid and troubling. However, there is no good argument to be made that a Special Counsel isn’t necessary now.

Assistant Attorney General Rod Rosenstein explained his decision to make the appointment (remember, he is acting AG in the Russian investigation, because Jeff Sessions was bullied and hectored into recusing himself, also unavoidable):

“In my capacity as acting Attorney General, I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility for this matter.My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”

Exactly. As for the last sentence, President Trump has no one to blame but himself. His own, typical, blundering, blathering ways created this atmosphere—that and “Deep State” leaks calculated to undermine him, and a news media feasting on those leaks like sharks on chum.

It is being argued that you can’t appoint a special prosecutor unless there is a finding that crimes have been committed. Here are the relevant sections of the law:

§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

§ 600.2 Alternatives available to the Attorney General.

When matters are brought to the attention of the Attorney General that might warrant consideration of appointment of a Special Counsel, the Attorney General may:

(a) Appoint a Special Counsel;

(b) Direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision; or

(c) Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.

I don’t read the law so narrowly. The law requires that there be a determination that a criminal investigation is warranted, not that crimes have been committed. Continue reading →

Ethics Hero: Lindsey Bittorf

/ Jack Marshall / 7 Comments

I regard people who contribute kidneys to near strangers as residing in a special category of Ethics Hero, in the exemplary ethics category….maybe the exemplary exemplary ethics category.  Considering Don Bedwell, the first individual I learned about who  engaged in this extraordinary act of sacrifice, kindness, and compassion,  I began my 2005 post, “There are special and rare people whose ethical instincts are so pure and keen that they can make the rest of us feel inadequate.”  Bedwell, a traveling businessman, donated his kidney to a waitress who often served him at his favorite Cleveland restaurant when he was passing through the city on business. The second altruistic organ donor was East Haven, Connecticut  Mayor April Capone Almon, who gifted one of her kidneys  to a desperate constituent she barely knew.

Wisconsin police officer Lindsey Bittorf is the most recent example of this special breed of ethics hero.  She saw a Facebook post from a local mother pleading for someone to rescue might  her  8-year-old son, Jackson Arneson, who needed a kidney. The boy’s family and friends had been tested and none were a match. Bittorf didn’t know the child or the family, but got herself tested on a whim. Doctors told her she was an unusually good match,considering that she was not related to the boy.

Last week, Bittorf  rang the doorbell at Jackson’s home to surprise his family with the good news,  ABC News reported. Jackson could have one of her healthy kidneys.The police officer told Jackson’s mom, Kristi Goll, that it was an “early Mother’s Day gift.”  That’s a bit better than flowers, you’ll have to admit. Continue reading →

Ethical Quote Of The Month: Former Harvard Law Professor Alan Dershowitz

/ Jack Marshall / 81 Comments

“If it was a polite request saying, ‘Oh, you know, he’s a good guy, Flynn, I wish you’d back off this thing,’ that’s not an obstruction of justice. If it was a command, it would raise stronger problems.”

—Retired Harvard law professor , Constitutional scholar, lawyer, liberal and CNN commentator Alan Dershowitz, trying to explain to MSNBC what “obstruction of justice” means.

I’ve never been a Dershowitz fan, but when the List of Shame is complied after the Post 2016 Election Ethics Train Wreck has finally ground to a halt, he’ll be on another list: the one containing those who maintained their integrity.

He needn’t have bothered: the news media/Democratic Party/ “resistance'” collective has already labelled James Comey’s so far only rumored “memo” recounting that the President asked the then-FBI Director, in a private meeting in February, to close the FBI investigation of Trump’s former national security adviser, Michael Flynn, proof of criminal motives and acts.

The New York Times learned of the memo from two people who claim they had read it. One of them read part of the memo to a Times journalist.  According to these unnamed sources’ description of the memo, Trump told Comey, “I hope you can let this go” in a meeting that took place the day after Flynn was forced to resign.

“I hope you can let this go” would be consistent with what Dershowitz, no Trump supporter but apparently yet to be infected with the integrity- and logic-destoying anti-Trump virus, accurately described as “not an obstruction of justice.”

The Times, however, a card-carrying member of the “overturn the election” cabal—we know this because it stated last August that defeating Trump justified tossing journalism ethics into the trash, and because since the election, its pages have from the book reviews to the op-ed pages have been filled anti-Trump propaganda—called Trump’s reported request “the clearest evidence that the president has tried to directly influence the Justice Department and FBI investigation” into links between Trump associates and Russia. This must mean that there is no evidence, at all, since saying “I hope you can let this go” is barely influence at all.

The news of the alleged memo was breathlessly hailed by the “Can we impeach him now?” fanatics, including some readers of this blog who should know better and once did, as a “bombshell.” As Alan Dershowitz dispassionately points out, and as I have in the comment threads, it’s no bombshell. This is not  remarkable observation; a New York Times contributor was even allowed to agree with Dershowitz. (The Times can’t completely commit to the lynch mob, for then its efforts to aid and abet would be less valuable. It’s quite a tightrope these people are walking….). Constitutional law prof Elizabeth Price Foley wrote, Continue reading →

The Legal Profession Appears To Have A Serious Character Standards Problem…

/ Jack Marshall / 15 Comments

I refer you, for context, to the recent post about Shon Hopwood, Georgetown Law Center’s former bank-robber, former federal prisoner professor, who was welcomed into membership in the D.C. bar…like me.

Now comes word that Tarra Simmons, a third-year law student, convicted felon and former drug addict, who in December won a Skadden Fellowship to help people recently released from prison, was told by the Washington State Bar Association that she did not possess the character to make her a trustworthy lawyer.

Tarra was a magna cum laude law school graduate, and co-chairs Washington’s Statewide Re-Entry Council.  She recently received a gubernatorial appointment to the state’s Public Defense Advisory Committee, and was selected by the dean of Seattle University School of Law to receive the school’s dean’s medal this year.

Nevertheless, the character and fitness board’s vote against Simmons was not even close, at 6-3.

A registered nurse for 11 years, Simmons became addicted to prescription drugs and methamphetamine after her father died, as she self-medicated for depression. In 2011, she was charged with felony theft, drug possession and gun possession, pleaded guilty, served 20 months in state prison. She says she  wants to assist former justice-involved individuals, as  a lawyer who has lived their experience, so they “can overcome barriers and rejoin society.”

But Tarra cannot cannot take the Washington Bar examination without getting a positive  character and fitness recommendation, and that looks unlikely. She’s appealing to the Washington Supreme Court, but traditionally that forum is tougher in assessing the  character and fitness of  potential admittees.

I think her course now is obvious: move to the District of Columbia. The bar there will surely see no reason to doubt her character.

After all, it’s not like she robbed a bank.

__________________________

Pointer: ABA Journal

Lawyer Snaps, Criticizes Own Client On Twitter, Daily Kos

/ Jack Marshall / 7 Comments

Mark S. Zaid is a distinguished lawyer currently active in bolstering anti-President Trump efforts. He actively trolls on Twitter for clients looking to bring laws suits against the administration, and his clients include prominent “resistance” conspiracy theorist and blogger Louise Mensch, whose name I was blissfully unaware of until last week, and now she is turning up in my e-mail, in my story feeds, everywhere.

A couple of days ago, Mensch launched a new Trump rumor, using “anonymous sources” (which makes her just like the New York Times and Washington Post!) that the Daily Kos picked up. You can read it here: good luck. It is so muddled in its “facts” and suppositions that it makes other fake news look good. Naturally, the Daily Kos took the “breaking” scoop at face value, although it was so legally absurd it made my teeth hurt. The Palmer Report, the same wacko site that drove Larry Tribe around the bend, also was in the mix.

My favorite item in the “story” was that a court had handed down an indictment against President Trump, not for criminal purposes but to support his impeachment. When I read stuff like this, I stop reading further. Grand juries don’t work like that. Courts don’t work like that. Indictments don’t work like that. Impeachment doesn’t work  like that. Nothing works like that, except to a mind where complete hatred and fear of Donald Trump and the joy of having so many mutually infected embarrassing themselves in high places has caused the brain to morph, hopefully only temporarily, into a gerbil wheel.

Zaid, who obviously has a high tolerance for this blather being a 24-7 Trump basher himself, apparently couldn’t take it any more, and wrote to his client Louise on Twitter and in the comments to The Daily Kos story,

Respectfully to my client, there is no info available to support this. We need more than just these anonymous source(s).

This is like putting client advice on a billboard. This is like leaving client advice on an answering machine (yes, I’ve encountered that!). This is like putting client advice on your Facebook wall, and it is exactly like posting  client advice on a public website, because that’s essentially what Zaid did. Continue reading →

This Is The Heartbreak Of Anti-Trump Brain Loss…

/ Jack Marshall / 158 Comments

We already beheld the sad spectacle of one of the nation’s most distinguished and respected legal minds beginning to crumble under the dual attacks of anti-Trump hysteria from his peer group, and the inexplicable power of social media to make wise men and women behave like idiots..here (my linking function isn’t working this morning: http://lawnewz.com/high-profile/in-dumbest-move-famous-law-prof-broke-ethics-rules-in-apparent-shot-at-trump/), when famed Harvard Law scholarLawrence Tribe breached a basic and legal ethics principle by issuing a tweet implying that Donald Trump had once asked him about a legal matter, and wouldn’t you all love to know what it was?  When I mention this to lawyers in my legal ethics seminars, they literally laugh and roll their eyes. They know lawyers can’t do this: why didn’t the famous Constitutional Law prof from Harvard Law School have his well-oiled  ethics alarms go off? It was because, I explain, Twitter often turns lawyers and other professionals into fools, and what brains social media hasn’t chewed up can be swallowed by anti-Trump madness.

That was before the election, and poor Tribe’s deterioration has  continued. Three days after the President was sworn in, Tribe joined a group of deranged lawyers and the early stirrings of the “resistance” to sue Trump for violating the obscure Emoluments Clause, which, sane and objective authorities agree, was not intended to apply to a President who has his name on hotels, making the claim that this unprecedented situation constitutes a government official receiving prohibited payments from foreign governments. The theory is not just a stretch, but an embarrassingly  partisan one that a respected Constitutional law scholar should have been mocking, not joining.

Now Tribe has really gone around the bend, and may soon be seen wandering aimlessly through Harvard Square, wearing a Red Sox cap, muttering to himself and carrying a crudely lettered sign. Continue reading →

Ethics Quote Of The Week: The New York Times

/ Jack Marshall / 25 Comments

“In passionate testimony before county legislators, and in tense debates with liberal neighbors born in the United States, legal immigrants argued that offering sanctuary to people who came to the country illegally devalued their own past struggles to gain citizenship. Some even felt it threatened their hard-won hold on the American dream.Their objections stunned Democratic supporters of sanctuary here and helped bring about the bill’s demise in March. A similar proposal for the state collapsed this month in the Maryland Senate, where Democrats also hold a two-to-one advantage. Some of the same immigrants spoke out against it.”

— New York Times reporter Sabrina Tavernise,in a story headlined, “Sanctuary Bills in Maryland Faced a Surprise Foe: Legal Immigrants”

Boy, that’s amazing! Who would have guessed that legal immigrants to the United States support the rule of law?

To the utter surprise of Democrats, some people are citizens and Americans first, and don’t believe that their color, ethnicity, religion or gender should get in the way of the core principles at the heart of our culture and history.

__________________

Pointer: Amy Alkon

You Asked For It: There are Indeed Ethics Issues Raised By Inexplicable Choking In The NBA Play-Offs

/ Jack Marshall / 24 Comments

Prolific commenter slickwilly wrote in one of the Comey threads,

Jack, we need a post on how the Spurs were aided in their win by either a) James Harden point shaving, or b) someone slipped him date rape drugs How ethical are the accusations?

I had been vaguely aware of the surprise rout the short-handed San Antonio Spurs inflicted on the Houston Rockets to win their NBA play-off series, but as the NBA is far-off my ethics radar due to the fact that I consider it a fake sport played by too many ethically-challenged athletes who achieved fame and wealth thanks to the corrupt college basketball system,  a direct query like this was required to get my attention. Here is what happened, courtesy of the Sporting News, as the Houston Rockets superstar delivered an epic choke when his team needed it most:

With Kawhi Leonard and Tony Parker out for Game 6 of the Western Conference semifinals, James Harden was expected to dominate the Spurs.

Instead, Jonathon Simmons and LaMarcus Aldridge led a perfectly executed game plan by Gregg Popovich to hold Harden and the Rockets to just 75 points in a 39-point win. Harden made just two field goals, had six turnovers and registered a minus-28 as Houston shot just over 30 percent in the loss.

The Washington Post later elaborated on the shocking details:

In the wake of the Spurs’ playoff series-clinching, 114-75 rout of the Rockets on Thursday, it was hard to know which was more shocking: that San Antonio could play so well without Kawhi Leonard and Tony Parker, or that James Harden could play so poorly. The Houston star scored just 10 points on 2-of-11 shooting in more than 36 minutes of play, looking nothing like a leading contender for NBA MVP honors…Harden not only failed to take advantage of the absence of the league’s best perimeter defender, he was stunningly ineffective in the final four minutes of regulation and through the five-minute overtime period. In that span, Harden scored four points on 1-of-6 shooting, turned the ball over four times, and committed two costly fouls, including an offensive foul on what could have been a game-winning possession with seconds left in regulation.

This is not just an example of a star player having a bad game, like “Casey at the Bat.” Harden is regarded as a strong contender for the 2017 NBA MVP award. Nobody could remember a similar example of a healthy NBA super-star playing so poorly for so long in a crucial play-off game, and there is no sport where a single great player’s performance can make the difference between victory and defeat more surely than basketball. Harden has not explained his flop, so people are making excuses for him. The popular  theory seems to be that he was suffering from a concussion following an elbow to the head suffered in the previous game two days earlier. This is pure speculation, however, and as the Post notes, Continue reading →

Ethics Alarm Check: What Do You Do If You Get A Text Like This One From A Close Friend?

/ Jack Marshall / 16 Comments

Hypothetical:

A friend asks via text:

“What you do if you knew a friend was trying to commit suicide?”

You text back,

“Talk them out of it”

Then he texts you…

“The thing is i wanna help kill them. it be awesome. seriously im going to help her. Its like getting away with murder! Im so fucked up. I’m seriously not joking. Its going down in about a week or two.”

This was the actual scenario preceding the suicide of a 16 year old girl (above. left) in Utah.

Hunters found the girl’s body hanging from a tree.  A can of industrial strength air duster and a cellphone were nearby, and the latter  contained a video of the girl’s death.

It showed the girl with a noose around her neck, standing on  on a rock. She inhaled the contents of the air duster can, lost consciousness, and fell off the rock, causing the noose to tighten and slowly strangle her. The video captures the ten minutes  it took the girl to die.

Tyerell Przybycien, 18, arrived at the scene to claim credit for the video, telling officers that he knew the girl and was with her when she died. He told detectives that he had a fascination with death and wanted to see what it was like to watch somebody perish.

Yes, it was Przybycien who wrote the text message to a friend.

There are other disturbing aspects to the story, but my professional interest is in the conduct of Przybycien’s friend. Let us eschew, for now, the question of why anyone would have a friend like this sicko in the first place.

We know the friend has at least rudimentary ethics alarms, since his first response, “Talk her out of it,” was the right one. After that, however, his ethics alarms died. Przybycien told him that he was planning on helping a girl kill herself because it would be a turn-on, and the friend did nothing to stop him…or at least did nothing that did stop him.

We can speculate endlessly about what would work and what would not, but this tragic scenario lands squarely in the realm of the Ethics Alarms principle, “If you are in a position to stop unethical conduct, stop it.” Here a life was involved, activating the coda, “Whatever it takes.”

What might some measures be that could fulfill this ethical imperative?

Continue reading →