Law & Law Enforcement

Nancy Pelosi and Forced Virtue

/ Jack Marshall / 9 Comments

I’m sure my friend and colleague Bob Stone will forgive my picking on a casual phrase he used in a comment on the previous post, for it is the inspiration for this one, and it involves the important issue of forced virtue.

Bob alluded to Speaker Nancy Pelosi finally doing “the right thing” when, as reported in the morning media, she told House Ways and Means Committee Chair Charles Rangel that he had to resign his post because of multiple ethics violations. Pelosi, we now know, had avoided this for as long as possible, first ignoring Rangel’s actions, then making the dodge that the Ethics Committee first had to make its ruling (Rangel’s egregious violations have never been in doubt), then suggesting that the violations were not significant (knowing that among them was a failure to pay taxes on $75,000 of income as well as acquiring hundreds of thousands of dollars of unreported—that is, hidden—income, all on the part of the reigning chair of the committee that oversees tax legislation) because the country wasn’t “jeopardized” by them. But now the press is calling for Rangel’s head, the Republicans are making accusations that seem, for once, reasonable, and other Democratic House members have joined the chorus demanding that Charlie must go. And this is all occurring as Pelosi is trying to martial her House majority as she attempts to ram the latest health care reform package past the nation’s gag reflex.

In short, Pelosi isn’t really doing the right thing. She’s doing the only thing. Continue reading →

The Unethical and Illogical Smearing of Justice Dept. Lawyers

/ Jack Marshall / 3 Comments

The Senate Republicans, bolstered by the political Right, are angrily criticizing Attorney General Eric Holder for having former Gitmo defense lawyers on the Justice Department anti-terror team.  This demonstrates many things, none of them good, some of them sad.

At least seven Justice Department lawyers previously worked on the legal defenses of Guantanamo Bay prisoners. Apparently this makes them terrorist sympathizers in the eyes of the Angry Right. This is the sad part. A flat learning curve is always sad. Continue reading →

Tough Ethics Lesson in Oakland: Appearances Count

/ Jack Marshall / 5 Comments

In Oakland California we have a prime example of why it’s not enough for public officials to avoid actual unethical conduct, and why they have to avoid the appearance of impropriety as well.

Last  summer, Oakland, California decided to address its increasing budgetary problems with a more aggressive parking ticket policy and extended parking meter hours. The City Council rescinded the meter-hour extension after protests from business owners and shop patrons, but the mercilessly enforced parking tickets continued.
Some narrow streets, however, posed special problems. Residents had parked the wrong way or on the sidewalk for years, because it was difficult and even dangerous to try to turn their cars around. If they didn’t park up on the sidewalk, emergency vehicles couldn’t pass. It didn’t seem fair to ticket the cars in these neighborhoods, so with the urging of the City Council, the police began instituting a policy of issuing courtesy warnings instead of tickets on those especially narrow streets. Continue reading →

Marco Rubio Trips an Ethics Alarm

/ Jack Marshall / 9 Comments

Florida Republicans have a wonderful opportunity to demonstrate the proper response to a bracing ethics alarm. They can vote against Marco Rubio, the Tea Party-backed opponent of Governor Charley Crist in the Republican primary for the U.S. Senate.

Whatever Rubio’s virtues, ideological or otherwise, he set off the alarm with this: according to a carefully researched story in the Miami Herald, Rubio used his party credit card—his business credit card, issued to him by the GOP to use for party-related expenses only—to pay for things like: Continue reading →

Ethics Hero: Johnny Depp

/ Jack Marshall / 1 Comment

Hollywood celebrities frequently lend their prominence and notoriety to causes that are dubious or even harmful; Jenny McCarthy’s passionate promotion of now-discredited links between vaccines and autism are a recent and disturbing example. At other times, celebrities assert expertise on complex topics far beyond their competence or comprehension; this was a theme in Michael Crichton’s attack on global warming hysteria, State of Fear. Johnny Depp, however, has got it right. As his highly anticipated film “Alice in Wonderland” is about to be released and he has the media following his every move, Depp is using his fame and following to focus attention on what may be an egregious miscarriage of justice.

It is the case of the West Memphis Three. In 1993, police discovered the bodies of  three 8-year-olds, and there was immediate speculation that their killings had been part of a satanic ritual. Satanic cults were big in 1993, and long-haired Damien Echols became a suspect as much for his demeanor and reputation as for anything substantive. Indeed, there was no evidence tying him to the crime until a cognitively impaired boy named Jessie Misskelly Jr. told police that he helped Echols and Jason Baldwin kill the boys. Continue reading →

TGIF Ethics Round-up: Killer Whales, Palin-Hatred, MagicJack and More

/ Jack Marshall / 9 Comments

Brief ethics notes on a wild week…

  • How dare the killer whale be a killer?…Tilikum, the killer whale who either playfully or maliciously killed his trainer at Orlando’s Sea World this week, will apparently stay in the facility. Some pundits (the ones I have heard were of the foaming-at-the-mouth conservative fanatic variety) regard it as absurd not to put down a murderous whale when a dog, bear or tiger that similarly ended a human life ( Tilikum may have ended three) would routinely be destroyed. One doesn’t have to be a PETA dues-payer to see this as advocacy for blatantly unfair retribution. Let’s see: Sea World takes a top-of-the-food-chain predator out of the oceans out of its natural environment, earns admission fees by making it perform tricks for the amusement of humans in a theme park, pays relatively tiny and fragile trainers to interact with the three ton beast, and when the predators does what it is naturally designed to do—kill—we blame the whale? Continue reading →

The Paterson Scandal: Another Governor Bites the Ethics Dust

/ Jack Marshall / 2 Comments

For weeks, rumors have been swirling around New York Governor David Paterson, indicating that the New York Times was about to drop a scandal bombshell that would mortally wound his political career. The rumors themselves became a story, bringing some sympathy to Paterson as a political figure being smeared by whispers and innuendo. Paterson, who became governor when his predecessor, Eliot Spitzer, disgraced himself and his office by patronizing exactly the kind of prostitution ring he made his reputation prosecuting, was already unpopular and hadn’t helped himself any by claiming his unpopularity was fueled by media racism.

The good news for Paterson: from this point on, he needn’t worry about racism being the cause of his low approval ratings.

The bad news: The New York Times did have a scandal to investigate, and it shows the governor to be almost as great a hypocrite as Spitzer, as well as an abuser of his power and position. Continue reading →

Ethics Quote of the Week

/ Jack Marshall / 5 Comments

“In today’s world of suicide bombers and a ravaged economy, it seems not merely frivolous, but ludicrous.”

——— New York Times Assistant Editor Richard Berke, referring to the impeachment of President Bill Clinton in his review of the new book, The Death of American Virtue: Clinton vs. Starr, by Ken Gormley, in the New York Times Book Review.

Berke’s view is popular, common, and ethically indefensible. A President of the United States of America lied under oath in a formal court proceeding, an act that would disqualify him for the practice of law in every state in the nation. He orchestrated a cover-up withing his administration to avoid the consequences of that lie, and lied again in a statement before the American people, not in the interests of national security, but to hide his own misconduct.

Demanding integrity, respect for the law, and conduct in keeping with the importance, dignity and significance of the high office of the President of the United States of America is not, and must never be regarded as, either frivolous or ludicrous. I can only hope that eventually, over time, after the distortions and biases of political passions fade into historical and ethical perspective, sentiments like Berke’s will be both rare and derided for misguided priorities they champion.

Randy Cohen Watch: “The Ethicist” vs. Integrity, Accountability, and the Law

/ Jack Marshall / 5 Comments

Randy Cohen, “The Ethicist” of the popular New York Times Magazine column, frequently gets in trouble when he opines on the law, legal ethics, and how lawyers interact with society. This week he was at it again, and he got in trouble, all right. Big time.

Bruce Pelligrino wrote to the column to get “The Ethicist’s” take on the actions of a friend, who told Bruce he wanted to hire a lawyer to challenge a speeding ticket even though he had admitted to the police officer, in the presence of his children who were passengers in the car, that he had been driving 51 m.p.h . where the limit was 35.

“I think he should accept the consequences, learn from the experience and give his children a lesson in ethics,” wrote Pelligrino. ”Shouldn’t he just pay the ticket?”

Cohen sided with the speeder, opining…

“Even those who think themselves guilty are entitled to their day in court, and there is civic virtue in their exercising this right. A trial is a way to hold officials accountable for their conduct. Was the radar gun accurate? Was the speed zone clearly marked? Did the police officer behave properly? And what, given all the circumstances, is an appropriate punishment? Little of this could be scrutinized if everyone simply paid the ticket. It would be a court-clogging nightmare if every self-confessed speeder demanded a trial, but it is a fine thing if, now and then, some people do.”

Randy appears to have misunderstood the question, believing that Pelligrino’s friend was being charged with an arcane S.E.C. violation, or some intricate form of criminal conspiracy. The guy was driving too fast, knew it, and got caught! What does Cohen mean “Even those who think themselves guilty”? The driver admitted he exceeded the speed limit on the basis of his own car’s speedometer; he didn’t “think” he was guilty; he knew with complete certainty he was guilty, and said so to the cop who stopped him.

“The Ethicist” thinks “it’s a fine thing” for that driver to renege on his admission and impugn the policeman’s behavior, challenge the speed limit posting and question the radar gun to get out of a wrongful fine for an act he admits he committed. How could this course of action possibly be called ethical?

Here is what really is “a fine thing,” Randy: integrity—sticking to one’s word and backing it up with action. The driver said the ticket was correct. It is dishonest and irresponsible for him to turn around and challenge it as Cohen suggests. Here’s something else that is “a fine thing,” Randy: accountability—admitting when you have done wrong when you know it and accepting the consequences. The purpose of the legal system is not to encourage citizens to try to avoid just consequences for admitted violations of the law. Yes, as Cohen correctly notes, everyone has a right to challenge charges in court, but as anyone who calls himself an ethicist is supposed to know, it is not always ethical to exercise a right. Banks have the right to kick elderly homeowner out onto the street as soon as they fall behind on their mortgage payments. I have the right to limit my circle of friends and business associates to straight, white, Protestant bigots. I have the right to be blatantly incompetent in my free ethics commentary, and, like Randy in this case, to give mistaken and even harmful advice. All of these things are still unethical, however.

The Ethicist’s answer to Mr. Pelligrino’s query is unethical too, dramatically so. Cohen is saying that it is reasonable and ethical to force a trial on a traffic offense when…

  • The driver admitted the offense to the police officer…
  • …in front of his children…
  • …in order to challenge the veracity of the officer, who took his admission in good faith…
  • ….requiring the officer to appear in court, taking him away from community law enforcement duties…
  • …taking up court time, using taxpayer-funded personnel, that should be devoted to cases where the facts are genuinely in dispute…
  • …with the objective of avoiding the payment of a just fine to the government, where it would be used for community purposes, in order to transfer money instead to the pocket of, not just a lawyer, but the unethical species of lawyer who is willing to take unconscionable cases…
  • …thus teaching the driver’s children, if the driver prevails, that the objective in life is use the system to avoid accountability, even when you deserve to be punished, and..
  • …that respect for the law is less important than avoiding a thoroughly earned fine, and
  • …that speeding is all right if you can get away with it, thus…
  • …increasing the likelihood that the children themselves will regard excessive speed this way when they become drivers, and also increasing the chances that their driving habits will cause harm to themselves or others.

I have  read “The Ethicist” for years, I have learned that Randy Cohen has unseemly problems with honesty, a reflex prejudice against law enforcement, and shocking and brazen cluelessness on matters of legal ethics and the exercise of legal rights. Bruce Pelligrino managed to ask a question that involved all of them, and the result was one of the most indefensible answers I’ve seen from Cohen yet.

An Unethical Ethics Conference

/ Jack Marshall / 5 Comments

The Fourth International Legal Ethics Conference at Stanford Law School has lined up  over 100 speakers. It is giving them no honorarium, hotel, meals or travel expenses, and despite the fact that they are providing the content and attraction for the event, the Conference still requires them to pay  registration fee of $350. Stanford is also charging its students a registration fee to attend, generously reduced to “only” $250.  But the conference can afford to be so generous, because it will also be getting registration fees from lawyers who are required to fulfill bar-mandated Continuing Legal Education requirements.

I have argued, and behavioral science suggests, that thinking about ethics helps one’s ethics alarms work well and often. The Stanford Conference suggests that either this is not as certain as I believed, or that the people running the ethics conference don’t actually think about ethics, which, if true, adds fraud to their list of ethical outrages.

The unfair and irresponsible requirements of the Stanford event has prompted least one prominent legal ethicist, Prof Monroe Freedman, to abandon plans to attend, saying, “I’m a card-carrying capitalist, but this kind of exploitation in the name of ethics could turn me into a Marxist, or a cynic.”

We should be concerned about a culture whose those in the ethics business are increasingly unethical. The sad lesson seems to be that when there is a conflict between commerce and ethics, commerce wins.