Law & Law Enforcement

The Estefanía Isaías Scandal: See, This Stuff Shows The Ethics Rot In Our Government, And We Don’t Even Notice It

/ Jack Marshall / 22 Comments
You have no idea who this woman is, do you?

You have no idea who this woman is, do you?

On December 4, the New York Times reported this:

MIAMI — The Obama administration overturned a ban preventing a wealthy, politically connected Ecuadorean woman from entering the United States after her family gave tens of thousands of dollars to Democratic campaigns, according to finance records and government officials.

The woman, Estefanía Isaías, had been barred from coming to the United States after being caught fraudulently obtaining visas for her maids. But the ban was lifted at the request of the State Department under former Secretary of State Hillary Rodham Clinton so that Ms. Isaías could work for an Obama fund-raiser with close ties to the administration.

It was one of several favorable decisions the Obama administration made in recent years involving the Isaías family, which the government of Ecuador accuses of buying protection from Washington and living comfortably in Miami off the profits of a looted bank in Ecuador.

The family, which has been investigated by federal law enforcement agencies on suspicion of money laundering and immigration fraud, has made hundreds of thousands of dollars in contributions to American political campaigns in recent years. During that time, it has repeatedly received favorable treatment from the highest levels of the American government, including from New Jersey’s senior senator and the State Department.

Amidst the swirling controversies over police shootings, grand jury decisions, race-baiting, fake rape allegations, Obama’s unilateral reversal of U.S. Cuba policy, ISIS, the Sony hack, Jonathan Gruber and more, not to mention the holidays, this story received almost no dissemination, yet in its own, slimy way is more important than any of the rest. For it is the quietly growing tumor of government corruption, allowing money to confer special privileges on the wealthy and policy that undermines the rule of law, that saps the nation of its public trust, and that creates the cynicism that eats away at our democracy’s vitality and strength.

Why did this story avoid media and public attention? It was a perfect storm of factors that make a news story unattractive to journalists and unfathomable to the public: Continue reading →

Prosecutor Ethics, “What The Hell Were You Thinking?” Dept: Dog-Whistling “Dixie” To The Jury

/ Jack Marshall / 29 Comments
"Wait...WHAT did you just say??"

“Wait…WHAT did you just say??”

Canyon County Deputy Prosecutor Erica Kallin wanted to make the point that the defense attorney for the African American defendant, James D. Kirk, was trying to lead the jury to ignore the evidence that pointed to his guilt in his trial for lewd conduct with a 17-year-old girl and sexual battery of a 13-year-old girl—making them, in effect,”look away” from the truth. How could she make that argument in a vivid way? Clarence Darrow used to use poems in his famous closing arguments; was there a memorable poem that used the phrase, “look away”?

“Eureka!” Erica thought. She found it! So she said to jury deliberating on the case:

“‘Oh I wish I was in the land of cotton. Good times not forgotten. Look away. Look away. Look away,’ And isn’t that really what you’ve kind of been asked to do? Look away from the two eyewitnesses. Look away from the two victims. Look away from the nurse and her medical opinion. Look away. Look away.”

The jury convicted Kirk, on both counts; the evidence against him was indeed strong. He was sentenced to 20 years in prison. Continue reading →

The Wall Street Journal Steals From A Blogging Lawyer…Luckily For Them, A Nice One

/ Jack Marshall / 3 Comments
A lawyer asks: Will Google Cars put me out of business? The Wall Street Journal asks: Why shouldn't we make money off your answer?

A lawyer asks: Will Google Cars put me out of business? The Wall Street Journal asks: Why shouldn’t we make money off your answer?

I always do a double-take when I see that someone has “re-blogged” a piece from Ethics Alarms. Unless there is something in my WordPress agreement that allows other bloggers to lift my work and publish it as their content without my permission—oh, who knows, there probably is—this is a copyright violation, but worse than that, it’s wrong. Apparently they think that if they give attribution, that makes everything fine. Why would they think that? I’m writing for my blog, not anyone else’s. If a blogger wants to reprint all, most or some of my commentary in order to critique it, that’s fine ( WindyPundit is doing this right now). But lifting all or most of my work to fill space on your website, without my permission? Not fair, and not ethical.

This just happened to personal injury lawyer and estimable blogger Eric Turkewitz, but the culprit wasn’t a blogger, it was the Wall Street Journal. It took his post about Google Cars and just slapped it into the print and online editions of the paper. “Lawyer Eric Turkewitz writes that self-driving cars will hurt the business of many personal-injury attorneys,” said the sub-head under “Notable and Quotable.” Hmmm. Usually a writer gets paid to write features for a newspaper. I guess just lifting copy without permission is “Fair Use.”

No, First Amendment expert Marc Randazza points out in his typically irreverent way, it isn’t:

In this case, the Wall Street Journal used 44% of Turkewitz’ post, with no additional commentary, criticism, or discussion.  The WSJ could have called Turkewitz a moron for his views, and quoted the whole thing (theoretically).  Or, the WSJ could have given approval, more discussion, or turned the article into piece of art, with spray painted Che Guevaras and stencils of Paris Hilton, as a commentary on Turkewitz, tomato soup, and golf, or whatever.  But, they didn’t do any of that.  

So lets look at the §107 [Fair Use]factors

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The purpose and character of the use is certainly commercial and for profit. The WSJ sold its newspaper with Turkewitz’ work in it, and even put it behind its paywall online. Same exact use, except WSJ took what Turkewitz distributes for free, gathered it, and sold it.

The nature of the copyrighted work was Turkewitz’ original opinions and thoughts.

The amount and substantiality of the portion used? 44%. Pretty substantial. Remember, this is not dispositive, but if you used almost half of an original work, you better have a good reason.

The effect of the use on the potential market for the value of the copyrighted work? That’s sorta iffy. It isn’t as if Turkewitz sells his work. But, that is not a requirement. Turkewitz’ blog currency is readership. If you do some quick online searches for some of the content, sometimes the WSJ version comes up above Turkewtiz’ version. Not cool. Ultimately, the WSJ blew it here because they didn’t add anything to the original — they just lifted it and reposted it….

So the verdict? The Wall Street Journal is definitely guilty of copyright infringement for lifting a bloggers’ work without any justification.

It’s worse than that, however. Continue reading →

Comment of the Day: “Comment of the Day: ‘Hard Lesson Of The Walmart Tragedy: Bad Ethics Kills’”

/ Jack Marshall / 12 Comments

Homefront-the-Revolution-592

My post about the tragic shooting incident in the Idaho Walmart continues to generate fascinating comments, not always directly related to the post. (Linking publications and websites to the contrary, I took no position on guns or gun control measures, though I have elsewhere on Ethics Alarms. The post’s positions were anti-incompetent gun ownership and anti-irresponsible parenting.) In the inevitable gun-related debates that have emerged, frequent commenter and blogger Shelly Stow opined that the need for guns to resist a government that attempts to crush individual freedom no longer exists.

This sparked the Comment of the Day, a history lesson as well as an explication for the need to have the last resort of armed revolution available, from 2014’s most prolific commenter, texagg04, and here it is, beginning with a quote from Shelly’s comment, on the post, “Comment of the Day: ‘Hard Lesson Of The Walmart Tragedy: Bad Ethics Kills’”:

“I disagree that, should our citizenry today become threatened by a government bent on tyranny, weapons in the hands of that citizenry would right the situation.”

Wait. What????

So, you are saying that IF we truly faced a tyrannical government at home THEN we aren’t supposed to do anything about it to overthrow it. And that’s precisely what you are saying if you think weapons in the hands of citizens isn’t the right situation.

What???? God knows in the face of a tyrannical government, sit-ins, hunger strikes, and demonstrations accomplish precisely nothing. Certainly no external forces would come to our succor — the UN, populated by precisely the kind of tyrannies we don’t want? No. Western Europe, which can’t even be bothered to solve it’s own problems? No…

Come now… Continue reading →

The NYPD Turns Its Back On De Blasio: What’s Going On Here?

/ Jack Marshall / 6 Comments

NYPD backs

The rift between New York Mayor de Blasio and his city’s police department  is more than an internal spat. It has the potential to divide and harm the city and citizens, not to mention crashing the Mayor’s already self-jeopardized political career early in his term. Both sides if this dispute committed hostile acts that the other considers grievously disrespectful. Neither combatant appears ready to apologize.

De Blasio crossed what many of his department’s officers consider an uncrossable line when he suggested, in the immediate wake of the grand jury’s decision not to indict in the Eric Garner case, that his own bi-racial son was at risk of harm should he be apprehended by the NYPD. As I have written before, this was not, as the spinners would have it, just a case of a mayor being candid about genuine problem in community relations. This was a tacit endorsement of the “hands up” protests and their contention that Garner, Mike Brown and others were the victims of police racism, that police are killing, likely to kill, want to kill, black kids. It doesn’t matter that de Blasio may not have intended that implication: under the circumstances and in the context of events, this is what police officers interpreted his remarks to mean. He was siding against them. He was suggesting that the grand jury was wrong not to indict. He was suggesting not that some NYPD officers were racially biased, but that black children like his son “may not be [Translation: “are not“] safe from the very people they want to have faith in as their protectors.”

The police have responded with multiple demonstrations of anger and contempt for their boss. Most recently, there were boos and jeers when De Blasio spoke at a police graduation ceremony this week. Over a hundred officers symbolically turned their backs when the mayor spoke at the funeral of Officer Rafael Ramos, who was assassinated by a man who suggested that he was seeking vengeance for the deaths of Garner and Brown. That had followed the theme of an airplane-towed banner over the city that read,“Our backs have turned to you,”which in turn was inspired by the spontaneous gesture by officers present when de Blasio visited the hospital where the bodies of Officer Ramos and his partner lay.

The New York Times, which has been guilty of bolstering the “hands up” lie by carelessly linking the deaths of Brown and Garner as well as Trayvon Martin, none of which can be fairly blamed on racism based on available evidence, has come down squarely against the police, writing in an editorial: Continue reading →

“Say It Ain’t So, Jim!”: Jim Webb’s Unethical Family Stipends

/ Jack Marshall / 7 Comments
Webb and staff. Well, wife. Well, never mind.

Webb and staff. Well, wife. Well, never mind.

Oh, great. I have personal experience with the character of one national political figure who impresses me with his honesty, courage and integrity; I support his political career and come to his defense when he is unfairly maligned, and now this. 

Time to put an ad in Craig’s List seeking a new hero.

According to a report in the Business Insider, Webb, a potential challenger to Hillary Clinton’s claim on the 2016 Democratic Presidential nomination as well as a former U.S. Senator, head of he Veterans Administration, best-selling novelist and decorated Vietnam veteran, has been playing the old, unethical Washington game of shoveling campaign contributions to his family. Let me give you some of the depressing highlights:

  • Webb’s  Born Fighting PAC is dedicated to supporting “candidates and entities” who support economic fairness, “reorienting our national security posture,” and developing greater accountability in government.
  • Federal Election Commission reports show that the committee, which received nearly $1 million in donations, gave a relatively small portion of that money to political candidates and groups. At the same time, nearly 10% of the contributions received by the PAC went to Webb’s family.
  • Records show that Webb’s  Born Fighting PAC has received $961,515.34 in contributions from individuals, politicians, progressive groups, businesses, unions, and Democratic Party organizations since it launched at the end of 2006. Of this money, $91,999.91 went to Webb’s daughter, Amy Webb Hogan, and wife, Hong Le Webb.
  • Since Webb declared his interest in the 2016 race, he has been identified as one of the main potential rivals for Democratic front-runner Hillary Clinton. Webb, who entered the Senate in 2006, announced he wouldn’t run for reelection at the beginning of 2011.
  • The Born Fighting PAC continued to contribute to Webb’s family long after it had stopped giving to funds to candidates and the groups it was established to support. Campaign finance reports show the committee has not given any money to political candidates or groups since the end of 2010.
  • The PAC has continued to take donations. Over $100,000 from the final balance in Webb’s Senate campaign account, now closed, was transferred to the committee after he left office at the start of last year.
  • Most of the money Webb’s wife and daughter received from the committee came after it had stopped giving money to politicians and political groups.
  • Webb Hogan began receiving money from her father’s PAC in 2009, when she earned $2,000 for “website consulting services.” In each year from 2010 through 2012 she received $12,000 for the same purpose. Last year, Webb Hogan was paid $14,500 from the committee. Of the money Webb Hogan was paid last year, the reports said $13,500 was for “administrative consulting services” and $1,000 was for “website services reimbursement.”
  • Based on archived versions of the Born Fighting PAC site, it was not updated at all during this period apart from a two-sentence note thanking donors for their “past support.”
  • Hong Le Webb was first paid by the Born Fighting PAC in 2008 when she received $253.37 for travel expenses. She did not receive any money from the committee again until this year, when, as of last month, she received $14,834.34. Most of the money that the committee paid to Hong Le Webb in 2014 — $13,800 — was listed in the reports as compensation for “website services.”
  • Along with the members of Webb’s family, the committee has hired professional web designers to work on the site. This includes work on the site done in the same period Webb’s PAC paid his family members for their “website services.”
  • Archived versions of the Born Fighting PAC website indicate it was updated just once this year. Hong Le Webb nevertheless received $13,800 for “website services” in addition to the money that was paid to L.A. Design Studio.
  • The latest Federal Election Commission report, which covers the period up to Nov. 24, shows the Born Fighting PAC has only $69,391.84 of the nearly $1 million it received left on hand. The committee spent about $900,000 from 2006 through last month. Of this, the records show that, over the years, just $200,027.04 of the money donated to the PAC went to political candidates and groups.In other words, Webb’s committee used only about 20% of the money it spent to support its stated mission.
  • One Democratic operative who spoke to Business Insider said leadership PACs “generally contribute 40% to 60% of the money they receive” to other candidates and groups. Born Fighting PAC seems to have had relatively high overhead even though the records show the committee did not have office space and barely employed paid staffers apart from Webb’s wife and daughter.

Continue reading →

A Lawyer Argues “Do No Harm” Should Be Added To The Legal Ethics Rules, Thus Proving Herself To Be A Hopelessly Unethical Lawyer

/ Jack Marshall / 12 Comments
This is Alexa. She'll let you know if your client is good or bad, and whether you should help him. Just ask.

This is Alexa. She’ll let you know if your client is good or bad, and whether you should help him. Just ask.

Lawyer Alexa Van Brunt contributed a jaw-dropping op-ed to the Washington Post over the holidays. It was titled “The ‘torture’ memos prove America’s lawyers don’t know how to be ethical,” and argued that the legal profession needs the equivalent of the medical profession’s “First do no harm” ethical standard.

It was irresponsible for the Post to print such a piece, because it made its readers, most of whom are thoroughly confused about legal ethics already, even more confused. So far, I have yet to find any lawyer who regards Van Brunt’s theory as anything other than laughable, tragic, shocking, or proof that ideology rots the brain. She cannot possibly understand legal ethics or even what the duties of the legal profession are and compose such an embarrassing piece.

Alexa Van Brunt is, we are told, an attorney at the Roderick and Solange MacArthur Justice Center, a Clinical Assistant Professor at Northwestern University Law School and Center, and a Public Voices Fellow with The OpEd Project. This explains a lot. She is a public interest lawyer on a mission, and thus represents only causes that she thinks are good, right and important. Apparently she missed the part of law school where you learn that one of a lawyer’s jobs is to assist non-lawyer clients as they try to accomplish their goals, which they believe are good, right, and important. These often involve engaging in controversies with others, and zero-sum results. Someone is going to suffer “harm.”

In medicine, what “do no harm” means is frequently clear: make the patient better, not worse. There are usually not competing patients, where a limited amount of health must be allotted among suffering human beings. Thus a doctor will not ethically take a healthy heart from a living patient to give to another. In law, however, “Do no harm” would render many disputes beyond legal assistance. Is a defense lawyer who refuses to let a guilty client be convicted by insufficient evidence, jury bias and wrongful interpretation of the law doing harm by freeing a criminal, or is it harm to allow prosecutions to violate due process? Is a real estate lawyer who assists as a company purchases virgin land for the building of a factory doing harm to the environment, or is the lawyer for the environmental group that tries to block it doing harm to the economy?

Van Brunt’s primary focus is the torture issue, but even there, what is “harm” is muddy. Those who supported the use of torture believed that precluding it would place the U.S. population at risk. Alexa defines “harm” as violating international law and the Constitution, but the Constitution, some scholars believe, does not prohibit torture as the CIA practiced it, and in war, doing harm is necessary to win. Who decides whether a litigant who wants to sue for police brutality is going to do harm to public safety, or whether defending a police officer accused of murder will encourage police executions of unarmed men? Who decides, when it comes to  finding that a lawyer violated this new, sensitive ethics rule, what constitutes “harm”?

Why Alexa, of course! She and all those other good people who know with absolute certainty what is right and just in every case—they know what harm is. Just ask them. Meanwhile, client confidentiality is out, because sometimes a lawyer keeping his client’s secrets may cause harm to others. Providing legal advice to banks, defense contractors, auto manufacturers, gun-makers, processed food manufacturers, McDonalds, pharmaceuticals, the Defense Department, the CIA, pro-life organizations (abortion providers don’t harm anyone, of course), the NRA, the Republican Party, this all causes harm…by Alexa’s standards, and she knows best. We don’t need judges or juries, just let the consciences of lawyer and their associations decide which clients are virtuous enough to be worthy of legal representation.

The op-ed is not just absurd, but ignorant and alarming. How can anyone this warped and lacking in understanding of the law and the ethical duties of the profession be teaching at a law school, where she can assist in the minting of new lawyers as ignorant, arrogant and unethical as she is?

Talk about doing harm.

 

Ethics Reminder To The Episcopal Diocese of Maryland And Bishop Cook: “Hit, Run, Realize You’re Screwed And Come Back 20 Minutes Later To Take Responsibility” Is Still “Hit And Run”

/ Jack Marshall / 26 Comments

bicycle-hit-and-run

Yesterday, Heather Cook, the No. 2 official in the Episcopal Diocese of Maryland, struck and killed cyclist Thomas Palermo with her vehicle. He later died; she did not stop and drove on, leaving the scene and her victim  badly injured by the side of the road. Another motorist stopped and called 911, and cyclists who set out to find the fleeing car reported seeing a Subaru with a smashed windshield. twenty minutes after the fatal accident Cook returned while investigators were still on the scene.

In an email to the clergy of the Episcopal Diocese of Maryland, the Right Rev. Eugene Taylor Sutton announced that Cook, the first woman to be ordained a bishop in the Maryland diocese had been involved in a fatal accident, and said,

“Several news agencies have reported this as a ‘hit and run.’ Bishop Cook did leave the scene initially, but returned after about 20 minutes to take responsibility for her actions.”

Oh. Well, leaving a man to die on the road is all right, then. Continue reading →

Incompetent Elected Official Of The Month: Rep. Michael Grimm (R-NY)

/ Jack Marshall / 18 Comments

jailedI have to get the ridiculous Congressman Grimm on the record so he’s eligible for the “Worst of Ethics 2014”  awards coming up in just a week or so.

You’ll remember the charming Rep. Grimm from this post, when he threatened to kill a reporter for asking him a question.

Now, after winning re-election in November (Staten Island and South Brooklyn, hang your head) despite being indicted on 20 criminal counts mail fraud and perjury, he has pleaded guilty to felony tax evasion and will be sentenced in June. He could spend from 24 to 30 months in prison.

So far, Grimm has indicated that he will not resign, which is where the “incompetent” comes in: he’s nuts. The nation can’t have convicted felons making its laws, or even sitting in the halls of Congress. House Minority Leader Nancy Pelosi called for Grimm to be thrown out; for once she’s right. It is likely that republican leadership will move against him quickly if he continues to be stubborn.

The House’s code of conduct could force him to abstain from congressional activities. There is a House rule that states that a member who has been convicted of a crime “for which a sentence of two or more years’ imprisonment may be imposed should refrain from participation” in committees and from “voting on any question at a meeting of the House,” until the member is “reelected to the House after the date of such conviction.”

The man has embarrassed himself, his office, his district, his constituency, anyone who voted for him, his party, his state and his nation and its system of government. Of course he has to resign.

I must say, though, if Grimm believes the same bozos who elected him in November won’t abandon him just because he’s wearing an orange jumpsuit while running, you can hardly blame him.

UPDATE: Grimm will resign.

______________

Sources: NPR, Washington Post

Banning The “Gay Panic Defense”

/ Jack Marshall / 29 Comments

Last year, the American Bar Association House of Delegates passed a controversial resolution calling on states to ban the so-called gay panic defense. The defense arises (when it does arise, which is rarely), in cases of a heterosexual accused of an assault on a gay individual when the defense attorney argues that his client was so shocked and terrified by a homosexual advance of a romantic or sexual nature that he was overcome with disgust, anger and fear, and was launched into a psychotic state that compelled violence. Many judges refuse to allow it, because there is no accepted scientific evidence that “gay panic” exists as a legitimate prelude to temporary insanity.

The ABA resolved:

 That the American Bar Association urges federal, tribal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.

Such legislative action should include:

(a) Requiring courts in any criminal trial or proceeding, upon the request of a party, to instruct the jury not to let bias, sympathy, prejudice, or public opinion influence its decision about the victims, witnesses, or defendant s based upon sexual orientation or gender identity; and

(b) Specifying that neither a non – violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, o r to mitigate the severity of any non – capital crime.

It should be no surprise that California was the first state to follow this plan, with Gov. Jerry Brown signing an anti-gay panic defense bill into law in September. Now New Jersey has a similar law under consideration. Continue reading →