Law & Law Enforcement

An Open Letter To America Ferrera In Response To Her Open Letter To Donald Trump

/ Jack Marshall / 34 Comments
America, America...

America, America…

Dear America (It’s really neat to be able to write a real letter to America on Independence weekend—thanks for that),

I can see why you called your open letter to Donald Trump “Thank You, Donald Trump!” The Donald did indeed do the supporters of illegal immigration a big favor by attaching his obnoxious face, words and character to the proposition that the United States has an obligation to control who comes into the country, like every other responsible nation. It is easy to pretend that any assertion by a big, loud-mouthed jerk is wrong, even when it is right, because most people can’t distinguish a message from its messenger. Similarly, a dishonest and dangerous message communicated by an attractive, Hispanic American celebrity and actress is typically accorded more legitimacy than it deserves, especially since the historical and political acumen of professional actors tends to be limited.

Well played. But that’s not the same as being right.

Your letter begins with a multi-layered lie. “You’ve said some pretty offensive things about Latino immigrants recently,” you say. In fact, Trump said nothing about immigrants. Did you read a transcript of his remarks, or just the portion clipped out of it by news organizations because this is Donald Trump, rich Republican buffoon, and fairness and ethical journalism don’t matter. My guess is that you didn’t read the transcript, which makes your open letter incompetent and irresponsible. Or, if you did, it is intentionally misleading, and an attempt to increase the ignorance of people who take policy screeds from actresses seriously. Continue reading →

Anti-Gun Zealots Must Reconcile Their Rhetoric With This, Or Concede That Their Adversaries, And All Citizens, Have A Right To Protect Themselves

/ Jack Marshall / 92 Comments

In Macon, Georgia, a coordinated mob of teens attacked a Walmart like a scene out of “Dawn of the Dead.” Surveillance cameras revealed this:

The Macon Telegraph reports that a group of about 50 teens swarmed the store and began destroying property, apparently for the fun of it. A customer in a motorized scooter was pulled from his seat and dragged on the floor, police say.  17-year-old Kharron Nathan Green entered the store at about 2 a.m. last Sunday morning and flashed “gang signs.” At his signal, a group of about 50 people, apparently teens or a bit older, charged into the store. They departed when police arrived. Green, was the only one arrested, not because he was the ringleader, but because he is an idiot. He returned to the scene of the crime to fetch a dropped phone.

That nobody was seriously hurt or killed is moral luck, nothing more.

Is it relevant that all of the teens appear to be black? Sure it is, though many news outlets—like the Macon Telegraph, in fact— didn’t think so, because that creates inconvenient implications. For one thing, it was very relevant to any police officer trying to deal with the onslaught, as having to shoot one of the mob if he was aggressive would have the cop branded as a racist killer  and possibly railroaded into a murder trial by the Georgia equivalent of Marilyn Mosby. Continue reading →

This Is NBC: With All The Ethical Reasons To Fire Donald Trump, It Picks An Unethical One

/ Jack Marshall / 19 Comments
Dignity...always dignity.

Dignity…always dignity.

It has happened here with Bill Clinton, Bristol Palin, and many others: this is the downside of running a website committed to fairness. I have had to come to the defense of some very unethical people through the years, but I can’t think of anyone I detest defending more than Donald Trump.

From the AP:

“NBC said Monday that it is ending its business relationship with mogul and GOP presidential candidate Donald Trump because of comments he made about Mexican immigrants during the announcement of his campaign.”

Let me count the lies:

1. Anyone, including AP, who believes this is why NBC fired Trump is too gullible to function in society. He was fired because Mexico, Univision and illegal immigration advocates were threatening to make NBC’s life miserable. If what Trump said mattered to NBC, NBC would have fired him shortly after he said it.

2. Trump said nothing about Mexican immigrants. His much-maligned quote discussed illegal immigrants from Mexico “bringing drugs, they’re bringing crime, they’re rapists and some, I assume, are good people.”  The unethical and dishonest effort by the news media to confuse the immigration issue and the crucial, material distinction between legal immigrants, whom the nation should welcome, and illegal immigrants, which it should not and must not, is more harmful than anything Trump has said on the topic.

3. The statement is deceitfully phrased to represent what Trump said as a slur on Mexicans, as a racist statement. Trump was talking about, in his typically lazy, crude fashion, our national problem of  unchecked illegals streaming across the Southern border, and the undeniable fact that this group includes criminals and rapists (like here, here, here…how many examples do you want?), as well as “good people.” Trump obviously wasn’t claiming that all illegal immigrants were criminals and rapists, because that would mean that some of the criminals and rapists would also have to be “good people.” But Mexico, which counts on us to solve their social problems for it, and illegal alien activists, who don’t want Americans to know that many of those sneaking into our country are not the salt of the earth, but quite the opposite, have successfully imposed a political correctness embargo on speaking the unpleasant truth.

Now on to the hypocrisy. NBC firing Trump is not just a little like, but almost EXACTLY THE SAME AS A&E firing Duck Dynasty’s scion Phil Robertson for public statements that were completely consistent with the reality star’s persona as A&E understood from the moment it inked a contract with him. The same is true of Trump’s trademark bluntness. The one difference: Robertson’s homophobic statements were blunt and ignorant, while Trumps statements about illegal immigrant were blunt and true. Continue reading →

Ethics Quote Of The Week: The Washington Post

/ Jack Marshall / 26 Comments

“The court’s legal analysis in Arizona State Legislature v. Arizona Independent Redistricting Commission was something of a reach. But the ruling’s practical implications are unequivocally positive.”

—–The Washington Post in an editorial praising the Supreme Court’s approval of Arizon’s unconstitutional solution to the persistent problem of gerrymandering abuse.

"IGNORE WHEN INCONVENIENT" Really?

“IGNORE WHEN INCONVENIENT” Really?

The Post’s quote means nothing more nor less than “the ends justify the means.” “Something of a reach” is a shameless equivocation: John Roberts’ dissent to the 5-4 majority’s “legal analysis” —there really is none—resembles Mike Tyson slapping around Honey Boo-Boo. The decision’s argument approving the Arizona end-around the Constitution’s Elections Clause that reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” can be fairly summarized as “this will work, so the Constitution be damned.” It’s not a “reach.” It’s  obvious defiance of what the document says.

It that so bad? It depends on what you think is more important, integrity or solving a problem. All of the big Supreme Court decisions in the past week have essentially raised this ethics conflict, and it is clear that the liberals on the Court is on the side of solving problems—at least as they see them— even when it means compromising what the Constitution says and what the Founders intended who drafted it, with the libertarian Justice Kennedy, who tends to lean away from laws constraining citizens anyway, often joining the  colleagues to his left. This issue is as stark an example as there can be,

Gerrymandering is unethical and anti-democratic. It was not foreseen by the authors of the Constitution, who can’t be expected to have predicted every devious political maneuver their successors would come up with to pollute their ideals. Unfortunately, the Constitution doesn’t provide a way for the public to stop the practice, other than electing less corrupt legislators, and legislators use gerrymandering to make that exceedingly difficult. A tweak of the wording in the Constitution could carve out an exception, but the Founders also made amending the Constitution in any way at all an almost impossible chore, including amending it to allow easier amending.

What’s a country to do? Well, sometimes the ends really do justify the means: that’s what utilitarianism means. If the Court can kill or limit gerrymandering by, as John Roberts felicitously put it in his dissent, gerrymandering the Constitution, it might be a good choice on balance. It benefits democracy. The conservatives argue, however, and legitimately so, that such a decision also creates a dangerous, even sinister precedent despite its good intentions (none of the Justices seem to think that gerrymandering is anything but unhealthy for democracy). What other laws that violate the plain words of the Constitution will the Court approve because its “practical implications are unequivocally positive,” to the cheers of partisans?  How many times can the Court do this before the Constitution is a dead letter, and any executive–or despot— can claim that government action, regardless of what Constitutional guarantees oppose it, is to be rubber stamped because it solves a real problem? Continue reading →

Playing Dangerous Cognitive Dissonance Games With U.S. The Supreme Court

/ Jack Marshall / 15 Comments
The cognitive dissonance scale, now being used to weaken a crucial U.S. institution for political gain.

The cognitive dissonance scale, now being used to weaken a crucial U.S. institution for political gain.

Of all government institutions, the U.S. Supreme Court has traditionally only trailed the Presidency in public trust and esteem. There are several good reasons for this. One is that being appointed for life, the Justices are presumed to be less subject to the personal and political agendas that make the positions of politicians suspect. Another is that the Court has often taken heroic stances that made the United States a better nation and more just culture. A third is that unlike elected political offices, that of a judge requires an education and technical expertise that the average citizen does not possess. The Justices are traditionally accorded the deference given to experts. Perhaps the most important reason we trust the Court is because we need to do so. It was made the third branch to protect the Constitution against violations of core rights, as well as to be an objective mediator when the other branches, or states, or courts, reach an impasse. Of the many ingenious devices the Founders put in place, the U.S. Supreme Court is one of the wisest.

That the Court is accorded inherent respect and trust is essential to the stability of our government. What the Court says, goes, and the culture and society, including the most furious dissenters in political parties and interest groups, must follow a ruling and constrain its efforts within those boundaries. There have been times when the Court recognized that its unique credibility obligated it to intercede in dangerous conflicts that might otherwise escalate to social unrest or worse. The 2000 Presidential election was a potentially dangerous situation because the result in Florida rested on a margin of error that the available technology was incapable of resolving with certainty.  Unlike the similarly dubious results in the 1960 election, the initial losing candidate and his party decided to plunge the nation into an electoral morass, in this case one complicated by politicized state courts, vague local statutes, confusing ballots, partisan media reports and varying standards of what constituted a vote, with the rotten cherry on top being a rare situation (it had happened only three times before)  in which a popular vote loser was  the apparent electoral vote winner. The Supreme Court stepped up and stopped it from spinning out of control, in essence declaring a winner. It was a courageous and responsible act, one that many (including me) predicted, and though it came at a high cost, one that exemplified why the Court’s public acceptance must be high—so it has some room to fall when it has to take a controversial stand.

This crisis was not the beginning of the effort by parties and activists to discredit the Court by impugning its motives and undermining the public’s trust, but it caused a permanent escalation. It was when the insinuation that a Justices nominated by Republican Presidents (or Democratic ones, depending on who’s leading the chorus of critics) see their job as bolstering that party’s policies and interests became routine. Continue reading →

#freebree = Lawlessness, Vigilantism And Hypocrisy

/ Jack Marshall / 48 Comments
"let's run her up the flagpole and see if anyone salutes!"

“Let’s run her up the flagpole and see if anyone salutes!”

Various anti-gay marriage zealots vowing to defy the Supreme Court and the law of the land are un-American and wrong, but a woman who decides to unilaterally make a decision that only the elected representatives of the citizens of South Carolina are authorized to make is a hero. Such is the muddled state of thought, ethics and civics among America’s progressives. Disobey the laws you don’t like, condemn the character of those who disobey the laws you favor. No integrity, no principles, no responsibility, no coherence, just grandstanding and anarchy, aimed at cheering ideologues incapable of proportion or restraint. This is an ethics vacuum masquerading as virtue.

“Bree,” which is what pole-climbing flag-grabber Brittany Ann Byuarim Newsome calls herself, is under arrest, as she should be, charged with defacing a monument and facing a fine. Good. She deserves one, and no accolades whatsoever. The Confederate flag is already under siege and on the verge of a permanent cultural taboo. Her actions would have constituted genuine civil disobedience and courage had it come before the flag was magically assigned blame for the murder of nine Charleston African Americans, to call attention to its symbolic defiance of civil rights. Coming now, Bree’s stunt is just  self-promoting vigilante theater, seeking and receiving support from the likes of Michael Moore.

There was nothing brave, productive or necessary about the flag stunt. The was a lot wrong about its message: don’t wait for the government process to work, don’t allow democracy and civil discourse to prevail, just unilaterally do what you “know” is right, and let the “ends justify the means” embracing mob celebrate. No doubt, this is the anti-Constitutional attitude the President has encouraged, but it recklessly risks fraying the seams of our democratic government, and erodes the rule of law. Continue reading →

Ethics Observations On The King v. Burwell and Obergefell v. Hodges Decisions And Their Aftermath

/ Jack Marshall / 80 Comments

supreme-court

 Obergefell v. Hodges, in which the Supreme Court considered whether states had to recognize a right to same-sex marriages, and King v. Burwell, in which the Court was called upon to clarify some incompetent drafting in the Affordable Care Act, could not be more dissimilar in terms of issues, topics, and significance. Nonetheless, because the two decisions involved hot political issues and arrived on consecutive days, and because they ended up favoring the positions that Democratic and progressive partisans support, they have been conglomerated in public discourse to fit several general themes, all, to varying degrees, misleading, simplistic, and biased. The decisions have also launched some of the most hysterical and embarrassing commentary in recent memory.

Some ethics, as opposed to legal, observations:

1. Anyone who hasn’t read the majority opinions and the dissents, who just skimmed them—believe me, if law school taught me anything, it taught me that skimming court opinions was a sure road to error and humiliation—or who read them but could not understand them, should be ignored, and perhaps gently mocked, for expressing any view at all about whether the decisions were the “right” ones. Quite simply, such people are not qualified to hold an opinion. They can have, and express, an opinion regarding whether the Court’s calls on Burwell or Obergefell are consistent with their own needs, desires, belief or political orientation, but they have no basis for asserting that either decision is wrong, or, right, on the law.

2. One can find it troubling and ominous, as I do, that the votes on the two cases were as predictable as they were. Objective legal scholars with integrity should be capable of ruling in ways that are not congruent with the personal political philosophies. A Democratic Presidential appointee who favors expansive government activity in health care control should be able to look at a statute designed to accomplish that purpose and still conclude, “Nope, the law mean what they want it to mean,” or “Sorry, the damn thing is unconstitutional.” Similarly, we should be able to trust a politically conservative justice to examine a statute that he objects to on principle and still conclude, “Yup, it passes the test.” Maybe all the Justices are capable of meeting this standard, but these two cases don’t suggest that. They suggest the opposite. Continue reading →

Unethical Quote of the Month: Justice Antonin Scalia

/ Jack Marshall / 41 Comments

Scalia

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

——U.S. Supreme Court Justice Scalia, excoriating his colleague, Justice Kennedy, who was the fifth vote in the majority of SCOTUS’s ruling today,  authored by Kennedy,  that same-sex marriage was a Constitutional right  no state could deny. Scalia filed an angry and intemperate dissent, low-lighted by this comment in a footnote.

Wrote Prof. Stephen Gillers, legal ethicist:

“How after this can Kennedy work with him?  Scalia has himself “descended” from the manner of argument found  in  opinions of John Marshall and Joseph Story to the invective and mockery of the Internet. Lawyers have been chastised for less derisive comments in briefs. Yet here we have it from our Supreme Court.  Scalia sets a bad example that will harm civility in lower courts and at the bar.”

Exactly.

The rest of Scalia’s dissent is hardly more restrained, either.

You can read the opinion and dissents in Obergefell v. Hodges here.

UPDATE: Here’s a screenshot of another selection, courtesy of Slate:

screenshot_99.jpg.CROP.promovar-mediumlargescreenshot_100.jpg.CROP.promovar-mediumlargescreenshot_101.jpg.CROP.promovar-mediumlargescreenshot_102.jpg.CROP.promovar-mediumlarge

Arguing with the majority’s wisdom and legal analysis is one thing, mocking a Justice’s writing style is quite another—unprofessional, uncollegial and below-the belt. Yes, Nino is a much better writer than Kennedy, but belittling his efforts shows neither proper judicial temperament nor appropriate respect for the Court itself. Some commenters excuse this because they disagree with the ruling: Irrelevant. Check your rationalizations, especially #2. The “They’re Just as Bad” Excuse, or “They had it coming.”

The Case Of The Trash-Talking Doctors, And The Price Of Trust

/ Jack Marshall / 66 Comments
So, did you hear the one about why surgeons wear those masks?

So, did you hear the one about why surgeons wear those masks?

When I first heard about this case, I thought the jury award of $500,000 was ridiculous. The more I think about it, the more I begin to think it was appropriate.

Before his colonoscopy, a Vienna, Virginia patient pressed record on his smartphone, not intending to record everything that was said but ending up with the entire proceedings anyway. That was a half-million dollar stroke of luck for him, and the confirmation of dark suspicions for the rest of us. The resulting recording revealed that the surgical team amused itself by insulting and demeaning the semi-conscious anesthetized man throughout the procedure.

The anesthesiologist, Tiffany M. Ingham, was the ringleader and the primary offender.  Among her inspired bon mots… Continue reading →

The Most Unethical Prosecutor Of All: Baltimore’s Marilyn Mosby

/ Jack Marshall / 12 Comments

Mosby

In a legal ethics seminar I taught this week for government attorneys, the vast majority of them voted that Marilyn Mosby’s vainglorious announcement of charges against six officers in the death of Freddie Gray was prosecutorial abuse, and a blatant violation of professional ethics rule 3.8, which directs that (this is the Maryland version)…

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

…
(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Of course it was a breach of ethics, and an outrageous one. Her statement, which I discussed here, not only overstated her justification for bringing the charges, which were rushed and announced before a careful investigation was completed, it also stated that the officers were guilty, and worse, that the charges were being brought because the demonstrating and rioting protesters has demanded it. Mosby’s words suggested that she stood with the mob. Continue reading →