Law & Law Enforcement

Ethics Dunce: Don Surber

/ Jack Marshall / 7 Comments

Don Surber is a former journalist and current conservative pundit whose blog and substack I occasionally peruse, usually without too much alarm. However, he has issued a substack essay that, if I had to summarize in three words my objections to it and any culture wars guerilla who cited him as authority would be, “This doesn’t help.” A longer version follows.

Surber’s piece is called “In praise of ties” and carries the subheading, “They helped build a society that we are destroying.” If Glenn Reynolds had not endorsed the link, I would have stopped reading right there. I know ties are going to be used as a metaphor for the decline of elegance, respect, adulthood, civility, dignity, elan and eclat, blattity-blah, but still. Don’t insult my intelligence. This is the equivalent of “In praise of stovepipe hats,” “In praise of spats,” “In praise of derbies” or “In praise of bustles.” These are all fashions, and fashions rise and fall like steam and autumn leaves. We get used to them, if they hang around long enough, and yes, sometimes their demise are linked to cultural factors that have little to do with fashion. Nonetheless, longing for a time when men wore ties as a matter of societal conformity makes one seem like Grandpa Simpson, screaming at clouds. Worse, in fact.

Surber writes, “Chuck Berry always wore a tie. Gas station attendants wore them. You could trust your car to the man who wore the star because he had a tie on. Men wore ties to ballgames because men were civilized. Ties were important because they gave a sense of authority but ties also showed that a man wants to belong in society. As Benjamin Franklin said, “Eat to please thyself, but dress to please others.”

Sure, Don. I always thought those pictures of men wearing ties at baseball games were ridiculous. Ted Williams, one of my father’s heroes whom he passed on to me, famously refused to wear a tie: he had a very long neck and didn’t think ties looked good on him. Ben was right, but when the tie as a symbol of wanting to appear formal and serious wane—it hasn’t waned completely —then people will adopt other ways of “dressing to please.” It is the way of the world, and there is nothing about these transitions to lament.

But Surber was just getting started. Here he is at full speed:

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Trump Sues ABC and Stephanopoulos For Defamation. Good.

/ Jack Marshall / 2 Comments

EA discussed George Stephanopoulos’s unethical, partisan, and thoroughly biased interrogation of Rep. Nancy Mace (R-SC.) about her endorsement of Donald Trump during the March 10 interview on ABC’s Sunday talking heads show, “This Week.” It was one of the more blatant examples of how the mainstream media’s partisan biases and “Get Trump!” slant has rampaged through U.S. journalism like a cancer, but nobody should have been shocked r surprised. Stephanopoulos was a Democratic operative and a Clinton minion when he was hired. His performance against Mace was George being George; it was not the first time his biases and dishonesty were put on display. ABC should never have hired him, but then ABC, like NBC, CBS, NPR, the New York Times, the Washington Post et al. have virtually abandoned ethical journalism for partisan advocacy.

Yesterday Trump’s lawyers filed a lawsuit over Stephanopoulos saying that Trump had been found “liable for rape.” The jury specifically found Trump liable for sexual abuse under New York law, but not rape. Under classic defamation law, falsely stating that a woman has engaged in illicit sexual activity was per se defamation, but 1) Trump isn’t a woman 2) defamation by a news source against a public figure is measured by a tougher standard under the New York Times decision, requiring “actual malice,” and 3) George was carefully tip-toeing around the edges of acceptable (under the law) celebrity smearing. I highly doubt that Trump can prevail. Nonetheless, I’m glad he filed the lawsuit…hell, I’m not paying for his lawyers. If significant numbers of Americans who have been metaphorically sleep-walking for the past 30 years or so finally see Stephanopoulos for what he is, and can connect the dots to realize what this tells us about American journalism, it will be a good thing.

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Heluva SCOTUS Choice There, Joe!

/ Jack Marshall / 15 Comments

Great. We now have a U.S. Supreme Court Justice who doesn’t like the First Amendment. The Babylon Bee hardly had to be satirical to come up with that headline. During yesterday’s oral arguments before the U.S. Supreme Court in Murthy v. Missouri, the newest Justice and the only one appointed by President Biden, Kentanji Brown Jackson revealed a frightening hostility to the most important guaranteed principle of American freedom from oppressive government.

“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” Jackson told Louisiana Solicitor General Benjamin Aguiñaga as he argued against allowing Big Brother to recruit Big Tech as a political ally by intimidating social media platforms into removing posts the government finds inconvenient. I read Jackson’s quotes yesterday with genuine horror. My sister, a federal litigator of liberal tendencies, had assured me that Jackson was a smart, solid, trustworthy jurist based on her experiences appearing before her. Justice Jackson may be smart, but trustworthy she isn’t. Intentionally or accidentally, President Biden’s openly DEI appointment to fill the Court slot vacated by Stephen Breyer installed the perfect tool to assist aspiring Democrat totalitarians to achieve their agendas.

Oh please, tell us again how Donald Trump is the existential threat to democracy.

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Ethics Quote of the Month: Missouri and Louisiana

/ Jack Marshall / 8 Comments

“The bully pulpit is not a pulpit to bully.”

—-The attorneys for Missouri and Louisiana in their U.S. Supreme Court opposition to staying the unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit order declaring that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention, and the F.B.I. had violated the First Amendment by secretly pressuring social media platforms to take down posts as “misinformation.”

What a great line! I’m amazed it has never been used before: an instant classic and useful quote.

Today the U.S. Supreme Court will hear the oral arguments in a case to determine whether the Biden administration violated the First Amendment in combating that endlessly useful word to progressive and Democratic censors, “misinformation,” on social media platforms. There are four case before SCOTUS on this topic, which, among other expressions of alarm, was the target of the so-called “Twitter Files” posts organized by Elon Musk in 2022.

The case being argued today, like the other ones, arose from revealed communications from administration officials urging/ persuading/ threatening social media platforms to take down Left-unfriendly posts on the Wuhan virus vaccines, the 2020 election and Hunter Biden’s laptop and other matters. Last year, the Fifth Circuit hit the Biden administration with an injunction that severely limited this tactic. The three judge panel wrote,

Defendants, and their employees and agents, shall take no
actions, formal or informal, directly or indirectly, to coerce or
significantly encourage social-media companies to remove,
delete, suppress, or reduce, including through altering their
algorithms, posted social-media content containing protected
free speech. That includes, but is not limited to, compelling the
platforms to act, such as by intimating that some form of
punishment will follow a failure to comply with any request, or
supervising, directing, or otherwise meaningfully controlling
the social-media companies’ decision-making processes.

And the Biden administration opposed that language. Let me repeat that for emphasis: the Biden administration opposed that language. This is, you will recall, the administration and the party that has based its campaign against Republicans before the election this year on the premise that it is the Republicans and their presumptive Presidential candidate, Donald Trump, who pose an existential threat to democracy. Yet these are the same aspiring totalitarians who used the power of the government—“Nice little business you have here…be a shame if anything were to happen to it!”—to secretly coerce, pressure, and infiltrate (read the whole order linked above) social media and Big Tech platforms to do their bidding regarding what opinions and assertions could be communicated by citizens.

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Do Illegal Immigrants Have the Right To Own Guns?

/ Jack Marshall / 18 Comments

WHAT? My visceral reaction was immediately, “That’s crazy!” My considered conclusion is, “I think they do.”

US District Judge Sharon Johnson Coleman ruled yesterday in US v. Carbajal-Flores that the federal prohibition on illegal immigrants owning guns is unconstitutional, at least as applied to Heriberto Carbajal-Flores, an illegal with no criminal record or record of violence. “The noncitizen possession statute, 18 U.S.C. § 922(g)(5), violates the Second Amendment as applied to Carbajal-Flores,” Judge Colman wrote “Thus, the Court grants Carbajal-Flores’ motion to dismiss.” She reached this conclusion after considering the US’s historical tradition of gun regulation as set out in the Supreme Court’s landmark New York State Rifle and Pistol Association v. Bruen ruling. Breaking misdemeanor immigration laws alone should not be sufficient justification for stripping someone of gun rights, the judge determined.

“[C]arbajal-Flores has never been convicted of a felony, a violent crime, or a crime involving the use of a weapon. Even in the present case, Carbajal-Flores contends that he received and used the handgun solely for self-protection and protection of property during a time of documented civil unrest in the Spring of 2020,” Judge Coleman wrote. “Additionally, Pretrial Service has confirmed that Carbajal-Flores has consistently adhered to and fulfilled all the stipulated conditions of his release, is gainfully employed, and has no new arrests or outstanding warrants….The Court also determined that based on the government’s historical analogue, where exceptions were made that allowed formerly ‘untrustworthy’ British loyalists to possess weapons, the individuals who fell within the exception were determined to be non-violent during their individual assessments, permitting them to carry firearms,” she wrote. “Thus, to the extent the exception shows that some British loyalists were permitted to carry firearms despite the general prohibition, the Court interprets this history as supporting an individualized assessment for Section 922(g)(5) as this Court previously found with Section 922(g)(1).”

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Fani Wallis Scandal Footnote: A ‘Bias Makes Legal Ethicists Stupid’ Moment

/ Jack Marshall / 4 Comments

This is disheartening, though not unexpected.

I have written about how thoroughly my colleagues in the legal ethics field are politicized, biased and frequently rendered unable to see the ethical issues through the fog of their peer-reinforced distortions. Yesterday, as my legal ethics expert listserv was buzzing with commentary on the judge’s “split the baby” response to Fulton County Fani Willis’s screaming conflict of interest, prosecutorial misconduct, race-baiting and stunning arrogance. One prominent lawyer in the field, a woman whose commentary is usually perceptive, wrote this in part…

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Speaking of Conflicts of Interest and To Prove I’m Occasionally Right: Let’s Revisit “‘Baseball Super-Agent Scott Boras Has Another Super-Conflict And There Is No Excuse For It,’ the Sequel”

/ Jack Marshall / 10 Comments

I have never recycled a post so soon (this one was was featured in January) but these are special circumstances:

  • After my analysis of the Fani Willis conflicts scandal did not jibe with the judge’s decision, my self-esteem is at a low ebb, and I feel the need to point out my prescience in this matter
  • This, like Willis’s self-made disgrace, is a conflict of interest, and one involving law as well…but also baseball.
  • The conflict of interest I flagged in January has now had some of the adverse results I predicted, and attention should be paid.
  • Baseball is one of the few things that has a chance of cheering me up right now, having gone through my first two weeks without Grace’s companionship and support. We followed the seasons (and the Red Sox) together since before we were married, as I taught her the game by taking her to watch the Orioles play Boston in old Memorial Stadium.

Two months after I wrote the post that follows, Spring Training is almost over and the season is less that two weeks away. Yet the two star pitchers I flagged as the victims of their agent’s greed and unethical conduct remain unsigned. I strongly believe that the reason they are unsigned is that the agent/lawyer they foolishly employ has been pitting teams against each other while using each pitcher as leverage to benefit the other, or so Scott Boras would argue. There is no question in my mind that if Blake Snell (above, right) and Jordan Montgomery (above, left), both talented left-handed starting pitchers that fill the same niche, were represented by different agents, both would have signed rich, long-term contracts by now. Because they have allowed themselves to be marketed by the same agent–an unconscionable conflict that baseball should prohibit and Boras’s bar association should sanction—they will not be ready to start the season even if both signed tomorrow. Pitchers who have had to miss large portions of Spring Training have frequently had off-years as a result: Boras’s greedy practice of representing competing talents may result in off seasons and even damage to their careers.

All of this could have and should have been avoided, and would have been, if baseball’s agents were subjected to any genuine ethical regulation.

Now here is the post… Continue reading →

When Ethics Alarms Don’t Ring: The Nebraska Gas Heist

/ Jack Marshall / 12 Comments

HEY EVERYBODY, FREE GAS!

Weeeell, not exactly free, but close enough, apparently, for a previously law-abiding, 45-year-old Lincoln, Nebraska woman, Dawn Thompson, to embark on a life of crime. I would love to hear what rationalizations she used to convince herself that what she did was okay. I’d bet anything that she employed a bunch of them.

Her gas-stealing rampage began to unravel when Lincoln Police got a call from Bosselman Enterprise’s loss prevention manager on Oct. 20, 2023. A Pump and Pantry had reported that someone was ripping them off. An investigation revealed that the convenience store’s gas pumps had received a faulty software update a year earlier in November of 2022. The update managed orders and reward cards, but it also allowed anyone who swiped a rewards card twice to shift a pump into its “demo mode.” Once it was set in that sequence, gas was free as far as the pump was concerned. One rewards card had been repeatedly used to fool the pumps, and police traced it to Thompson.

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Friday Open Forum: Waiting to See If I’m Right…

/ Jack Marshall / 15 Comments

Judge Scott McAfee confirmed yesterday that he will announce the fate of Fulton County’s designated “Stop Trump!” agent Fani Willis some time today. From the moment your friendly neighborhood ethicist heard the basic facts in this annoying story I was convinced that one way or the other she would have to leave the Trump case. One of my legal ethics colleagues emphatically disagrees, arguing that whatever conflicts of interest she created by hiring her illicit boyfriend to help prosecute Trump were matters of legal ethics discipline but irrelevant to the defendants. He also pooh-poohed the “appearance of impropriety” issue, echoing the American Bar Association’s logic when it took that category out of the ethics rules: actual impropriety matters, the mere appearance doesn’t.

Yet Willis is a government attorney, and employees of the state are required to avoid the appearance of impropriety because it erodes the public trust. If there was ever a prosecution that mandated a squeaky clean leader beyond suspicion or reproach, this is it. Instead, Willis has left an odoriferous trail of conflicts, arrogance, hypocrisy, dubious explanations and likely lies, all supported by her obnoxious reliance on race-baiting. I have been certain that she would eventually go down for all of this, and that my learned friend–who is apolitical— as well as the my myriad partisan-biased colleagues in the legal ethics association I belong to are wrong.

Well, we shall see . If you see Fredo (“I’m smart! I’m not dumb like everybody says!”) leading off a post today, you’ll know I was right.

Meanwhile, talk about whatever interests you in the Wonderful World of Ethics.

Ethics Alarms Points Out How Terrible RFK Jr.’s VP “Short List” is; Kamala Harris says “Hold My Beer!”

/ Jack Marshall / 3 Comments

What a shameless demagogue.

I am immediately torn, because every Kamala Harris head-exploding utterance raises a Julie Principle issue: OK, an elected official who has conclusively proven herself to be dumb, irresponsible and ethically inert says something that is dumb, irresponsible and ethically alert. Why is that worth complaining about or criticizing? Nevertheless, some of Harris’s outbursts are just too despicable to be ignored. Like this one, today, as she visited abortion providers and staff members at a clinic in St. Paul, Minnesota to cheer on women putting the unborn to death for the crime of complicating their mothers’ lives:

“These attacks against an individual’s right to make decisions about their own body are outrageous and, in many instances, just plain old immoral,” she thundered. “How dare these elected leaders believe they are in a better position to tell women what they need, to tell women what is in their best interest. We have to be a nation that trusts women.”

Nice. Kamala had previously used the “How dare they!” stunt to condemn the U.S. Supreme Court for daring to do their jobs, which includes striking down bad decisions that made up constitutional rights that didn’t exist. The abortion-fanatic’s dishonest defense has always relied on pretending that only one life is involved in an abortion, though the state has a valid interest in protecting all lives, including unborn humans who their mothers want to kill. When does an abortion in Harris’s world suddenly involve more than just the woman’s body? Six weeks? 15 weeks? 9 months? Never, if her words mean what they appear to mean. “Plain old immoral” has always included “Thou shalt not kill”: what weird definition of “immoral” is Harris alluding to? It must be really old; Sumarian, maybe? Ancient Aztec?

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