Law & Law Enforcement

Brian Banks’ Lawyer’s Dilemma: The Ethics of Counselling An Innocent Client To Plead Guilty

/ Jack Marshall / 15 Comments

Would Wanetta have eventually admitted her lie if Brian Banks had been sentenced to 40 years? Would you bet your life on it?

The understandable uproar over Brian Bank’s five year imprisonment for a rape he never committed has focused public attention on the wrenching situation where a criminal defense attorney feels he must counsel an innocent client to plead guilty (or no contest, in Banks’ case) when the only alternative appears to be conviction at trial and a harsher sentence.  Banks’ attorney persuaded him that five years for a crime he didn’t commit was preferable to a maximum of 40 years if he was found guilty.  Was that bad advice? Was it unethical advice? Continue reading →

Reporting the Confessed Killer in Your Midst: An Ethical Dilemma That Isn’t

/ Jack Marshall / 5 Comments

Pedro Hernandez, now under arrest for the murder of Etan Patz, the  6-year-old boy whose 1979 murder was a national mystery, confessed that he had strangled the child just a few years later to his prayer group at St. Anthony of Padua, a Catholic church in Camden, New Jersey.  No one, including Hernandez’s relatives who learned of his confession and the prayer group leader, reported the confession to authorities.

Hernandez’s sister, Milagros Hernandez, confessed what she described as a “family secret” to a reporter for the New York Daily News over the weekend, setting off “What would you do?” internet polls and blog posts, as if there was any question about the proper conduct for a family member or church group member who hears a murder confession. There is no question.  You report it. There are no debate issues, no competing considerations, no claims of loyalty or confidentiality.  It isn’t a Golden Rule dilemma, as in “Would I want someone to report me if I confessed to him in confidence that he had strangled a little boy?”  It isn’t a dilemma at all. There is only one right thing to do, and if you think otherwise, you missed a couple of key meetings when the ethics were being handed out. Continue reading →

Is It Fair For A Business To Discriminate Against the Homely?

/ Jack Marshall / 28 Comments

 

Take your pick!

The EEOC is investigating a popular Boston area coffee shop chain, alleging that it discriminates in favor of attractive young waitresses to the detriment of older or more homely waitresses. The management of Marylou’s disputes the accusation, arguing that its hiring pool is disproportionately young and attractive.

I don’t want to get into the actual guilt or innocence here, but rather muse about the ethical issue. Should there be laws preventing employers from using attractiveness as a criteria in hiring, if it is relevant to the success of the business, or even if it is not? If a coffee shop owner’s patrons are overwhelmingly male, and the owner believes that having waitresses who look good in a starched uniform makes the customers happy and more likely to spend their money, why should the law prevent that? Is there anything really wrong with the conduct? Continue reading →

Is Elizabeth Warren A Pit Bull?

/ Jack Marshall / 8 Comments

You never know.

Lucky for her, she doesn’t look like one. Then again, she doesn’t look like a Cherokee, either…

After all, it is even easier to be designated a “pit bull” than a Cherokee, believe it or not. As a result, hysterics in the public and on the Maryland Court of Appeals have decided it is prudent to engage in the kind of bias and fear-driven racism regarding pets that would be condemned as brutally unjust if applied to humans.

The Maryland Court of Appeals ruled that “pit bulls” are “inherently dangerous” and will be subject to higher levels of liability, meaning, among other things, that there will be no “one bite rule” for these dogs, the usual trigger for determining whether a canine is a risk to humans, and that landlords will be forcing tenants to either get rid of their “inherently dangerous” dogs or move out. The ruling is  the result of bad reasoning, bad information, bad statistics and bad law, not to mention bias. What kind of legal standard depends on a term that has no definition and no way to determine what fits it? Yet that is what the Maryland pit bull ruling does.

As I have noted here in other posts, “pit bull” is a generic term applied to several bull dog and terrier-mix breeds, and mistakenly to up to 25 other breeds as well. This renders the deceptively used statistics of anti-pit bull zealot organizations like Dogs Bite.org completely worthless. I would say completely useless, but there are useful…for getting  perfectly gentle and trustworthy dogs killed. In its compiled statistics of deadly dog attacks, the organization states that “pit bull-type dogs” are responsible for 59% of fatal attacks on humans, contrasted with specific breeds like Rottweilers. The category of “pit bull-type dogs,” however, includes at least five distinct breeds that are often called “pit bulls”—  the American Bulldog, American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, Bull Terrier, and the Mini Bull Terrier. Anti-pit bull breed-specific legislation also includes absolutely non-pit bull breeds in its definition of “pit bull types” in many jurisdictions, breeds like the Boxer, Bull Mastiff, Boston terrier and French Bulldog, the last two especially deadly threats to lick you into submission. Such laws are, in truth, dog legislation created by people who know nothing about dogs, but who are perfectly willing to take responsible people’s loving pets away and kill them if it will mollify some phobic voters.

Then there are the dog breeds that may be called “pit bulls” by dog attack victims who can barely tell a dachshund from a Great Dane. Among those “pit bull-type breeds” are the Alpha Blue Blood Bull Dog, American Bulldog,  American Pit Bull Terrier, American Staffordshire Terrier, Banter Bull Dogge, Black Mouth Cur, Boston Terrier, Boxer, Bull Terrier, Bulldog, Bull Mastiff, Cane Corso, Dogo Aregentino,  Dogo Canario, Dogue De Bordeaux, English Bulldog, English Mastiff, Fila Brasileiro, Fila Mastiff, French Bulldog, Italian Mastiff, Mastiff, Mini Bull Terrier, Neapolitan Mastiff. Old English Bull Dogge, Patterdale Terrier,  Presa de Canario, Staffordshire Bull Terrier, Spanish Mastiff, and the Valley Bulldog.

So what does the predominance of “pit bull type dogs” in the dog bite statistics tell us? It tells us that a lot of fearful, ignorant people—and judges— don’t know what pit bulls are, but they are afraid of them and want to wipe them off the face of the earth anyway.

For the record, there is only one true pit bull, the American Pit Bull Terrier, which looks like this:

Continue reading →

Ethics Alarms Lubricant 1: Jennifer Rubin on Intimidating the Supreme Court

/ Jack Marshall / 2 Comments

Whatever one may think about the Constitutionality of the individual mandate provision of the Affordable Care Act, also known as “Obamacare,” it is a difficult and complex question. Anyone who argues otherwise 1) doesn’t know what they are talking about, 2) is lying, or 3) is basing their opinion on ideological considerations rather than legal ones. The members of the Supreme Court, which must decide the question (and in fact have almost certainly decided it) do know what they are  talking about, and while they all have ideological tilts in the sense that each gravitates to a particular Constitutional philosophy, political considerations, ideas pushed by the media and the popularity of particular legislation are supposed to play no part whatsoever in their deliberations.

The degree to which the Democrats, led by President Obama, have attempted to intimidate, hector and insult the Court into deciding the case in favor of the mandate is unprecedented in my lifetime, and I think it is unprecedented period. The advocates for the law had its legal representative make their case before the Court, and by all accounts he either botched it, or didn’t have points strong enough to withstand the challenges posed by the Justices in oral argument. Fearing that their landmark legislation that was passed by a whisker will topple because of the flawed cornerstone that its architects foolishly, arrogantly and unnecessarily placed at its foundation, Democrats have been pre-emptively impugning the honesty of the Court, essentially arguing that if the law is overturned, it will only be because of political favoritism and bias. It has been a disgraceful display, and is a despicable tactic. Continue reading →

Now THIS Is An Unethical Lawsuit (And a Bonus Ethics Quiz!)

/ Jack Marshall / 6 Comments

A perfect lawsuit for Jackie!

Not legally unethical, mind you, oh no no no! Remember, a lawyer is not unethical when he brings a crack-brained lawsuit as long as he can muster some vaguely plausible theory to support it. Even if he thinks the case is a long-shot of long-shots, if the lawyer has a good-faith belief that it could prevail without violating the natural laws of time and space, it’s “ethical.” Thus it is that the lawyer for the victims of a car crash caused because the teenaged driver of the other vehicle was reading a text message from his girlfriend can ethically bring a lawsuit against both the driver, Kyle Best, and his girl friend. Continue reading →

Legal/Ethical Train Wreck in Indiana: The Case of the Poisoned Fetus

/ Jack Marshall / 16 Comments

Mother, failed suicide, accused murderer, and ethics train wreck engineer.

If there are logical and ethical holes in a law, you can count on a case eventually coming along that will make them obvious and painful. Thus it is that the the case of Bei Bei Shuai, a Chinese immigrant living in Indiana, was concocted by the vengeful Gods of Inconsistency to highlight some of the legal problems in two notorious ethical gray areas, abortion and suicide. I’m not going to even try to solve the mess. It’s hard enough to describe it.

Suicide is illegal in Indiana, but attempted suicide is not. In Indiana, as in most jurisdictions, however, if one’s unsuccessful  suicide kills another by accident, that could be prosecuted as manslaughter, through the doctrine of transferred intent. In the case of Shuai, she drank poison, ostensibly to kill herself. But she also wrote a note saying that she was “taking the baby.” Of course, when a pregnant woman kills herself, that usually suggests that she understands that her act will kill her unborn child as well.  Perhaps she was trying to kill herself and wasn’t considering the baby. Perhaps she was trying to kill the baby, and not herself. Perhaps she was trying to kill both herself and her child.

What happened, however, is that she lived. The baby was born, but died shortly thereafter as a consequence, prosecutors say, of the poison Shuai swallowed. Continue reading →

So Wrong It Defies Belief: The Green Bay Police Heist

/ Jack Marshall / 4 Comments

Maybe the public and the media are finally waking up to the astoundingly un-American abuse of power that are the  civil forfeiture laws,  which allow property and cash to be seized as helping to facilitate a crime, and later are divvied up between the police and the state. There are some promising signs. Libertarians like Radley Balko have been trying to ring the ethics alarms on this horrendous example of government misconduct for years, and the Institute for Justice continues its lonely battle to defeat the most egregious offenses, but George Will just used the trumpet of his weekly column to expose the Caswell family motel scandal, which Ethics Alarms discussed in February here. Now comes a tale of civil forfeiture from Wisconsin that is so brazen that it defies belief, and also compels the following question:

How can this happen  in America? Also this one: If the government will use its power to steal money and property from law-abiding citizens, and no effort is made on the part of national government leaders to do anything to stop it, how can at least 50% of the American public continue to advocate giving more power and money to a government that obviously cannot be trusted with either?

The first question is frightening in its implications.

The second is a mystery, on par with “What happened to the Mary Celeste?” Continue reading →

When Unethical Approaches Evil: The Clarence Aaron Pardon Fiasco

/ Jack Marshall / 2 Comments

Clarence Aaron, waiting for justice

I read about Clarence Aaron four days ago. It has bothered me ever since. The short version of this horror story is that a young man, outrageously sentenced to three consecutive life sentences for a drug offense despite being a first offender, was poised to receive a pardon from President Bush but did not, because the Pardon Attorney charged with job of presenting the case to the President inexplicably left out critical  information that would have all but guaranteed his freedom. The attorney’s name is Ronald Rogers: he was the Pardon Attorney under Bush, and is still in that post today.

I have been trying to figure out what ethical breach would describe what Rogers did, a difficult task in the absence of an explanation from him. Was this incompetence? Laziness? Was it a lack of diligence—was he careless? Did Rogers sink Aaron’s case because he doesn’t like blacks, or doesn’t like drugs, or doesn’t like pardons? Does he lack empathy? Sympathy? A heart? Continue reading →

The Right Kind of No-Tolerance Policy: Will Obama Get A Halo For Prison Rape Reform?

/ Jack Marshall / 19 Comments

If backing gay marriage earns a rainbow halo, stopping prison rape at least warrants this….

The Justice Department just announced the first comprehensive federal rules aimed at “zero tolerance” for sexual assaults against inmates in prisons, jails and other houses of detention. The new policy has teeth in it, decreeing that states that don’t take adequate measures to prevent sexual assault on prisoners will lose federal prison  funds. This initiative was disgracefully long in coming, but begins the repair of the human rights atrocity going on in the nation’s prisons literally since the first cell door clanged shut. It is the right kind of “no-tolerance” policy, because allowing prisoners to rape other prisoners—it is estimated that at least 10% of all inmates experience sexual assault—-should never have been tolerated. That it has also been used by law enforcement and popular culture to enhance the deterrent power of imprisonment, essentially making rape a culturally and governmentally sanctioned element of the penal system, should weigh heavily on the national conscience for years to come. It was un-American, as vile a desecration of the principles of our country as torture.  Continue reading →