Law & Law Enforcement

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.

The Citizens United Opinion and the Post’s Unethical Poll

/ Jack Marshall / 3 Comments

Is the Washington Post story on  the Citizens United v. FEC Supreme Court opinion and the public’s reaction to it  dishonest, sinister, or just incompetent? I’m not sure, but I am sure of this: it is a classic example of why polls are a terrible way to guide national policy and lawmaking. The Post article begins…

“Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll.”

The statement is false and misleading. Whatever the merits or deficiencies of the Citizens decision may be, the vast majority of the American public has no idea what the Supreme Court ruling was, or why it was made. Continue reading →

The Duties of Citizenship, Ethics, and the Happy Rape Victim

/ Jack Marshall / 9 Comments

A few months ago,  Washingtonian Magazine printed the harrowing memoir of Amanda Pagliarini, a woman who as a teenager was raped by some friends of her boyfriend as he looked on and did nothing. Entitled “How Could He Just Stand There?” the article recounts how she first came to be involved with “Juan,” how the rape affected her life, and remarkably, how she came to talk with her ex-boyfriend about the tragedy and his role in it years later. One of his revelations was that the gang that raped her also had done the same to other girls.

Her article concludes with this: Continue reading →

Trust, Redemption, and Bank-robbing Lawyers

/ Jack Marshall / 3 Comments

The story of Shon Hopwood is certainly an inspiring one…so far. While serving more than a decade in federal prison for a series of armed robberies, his time in the prison law library turned him into an expert in case law, and he pulled off a rare feat: a petition for certiori he prepared on behalf of a fellow prisoner successfully persuaded the U.S. Supreme Court to review the case. Now Hopwood is out of prison, and is turning his life around. He has been working as a paralegal, he now has a family, and at 34, he plans to apply to law school.

It is likely that a law school will admit him, but not at all certain that any state bar would give him a license. Can a former bank robber pass the profession’s character requirement? Should he, no matter how good he is at writing Supreme Court briefs? Continue reading →

Unethical Website: The Brittany Murphy Foundation

/ Jack Marshall / 5 Comments

This is strange in so many ways, not the least of which being that TMZ, the generally worthless celebrity gossip website, is responsible for blowing the whistle.

Actress Brittany Murphy, best known for her break-out role as the cool-girl wannabe in “Clueless,” collapsed and died in the shower in December, another apparent victim of too much stress, too many diets, and too many prescription drugs in her system. “The Brittany Murphy Foundation,” set up by her family and husband, Simon Monjack, began soliciting contributions on its website in January, supposedly for arts education for children. TMZ received a tip that something was amiss, did some investigation, and discovered that no such foundation had been registered with either the IRS or the State of California. Continue reading →

Of Presidents Day, Atticus, a Congressman’s Dilemma and Serial Moms

/ Jack Marshall / 8 Comments

Short Alarms:

  • With increasing numbers of young Americans knowing embarrassingly little about our nation’s past, the wrong-headedness of President’s Day rankles worse than ever. Rather then designate the February birthdays of our two greatest presidents—Washington, the “indispensable man” who made the United States a reality, and Lincoln, the brilliant leader/philosopher who kept it from tearing apart—as yearly commemorations of their remarkable lives and our debt to them, Congress lumped them into a generic “Presidents Day,” thereby demonstrating that it deemed a three-day weekend and consumer merchandise sales more important than our heritage. Worst of all for ethics fans, George, who “wouldn’t tell a lie,” and Honest Abe are the only U.S. Presidents remembered for their truthfulness. Yet here they are, forced to share their “day” with the likes of Woodrow Wilson, Harding, J.F.K, L.B.J., Tricky Dick and Bill Clinton. The right thing to do would be to go back to celebrating February 12 and 22. Washington and Lincoln deserve it, and so do the values they stood for.
  • Speaking of ethics icons, one of my wife’s favorites,”To Kill A Mockingbird’s” Atticus Finch, has been under attack in some quarters for being passively acquiescent in the Jim Crow morality that convicts his black client despite overwhelming evidence that he is innocent. Continue reading →

The Seattle Beating Tape: “Just Following Orders”

/ Jack Marshall / 13 Comments

I know the Nuremberg defense when I hear it, and this is the Nuremberg defense.

The release of a January security video from a Seattle transit station has triggered a public uproar, and no wonder: it shows a group of girls brutally beating a young woman, including kicks to her head, as three security guards stand by, watching, doing nothing. Well, not exactly nothing: they did call for help.

Gee, thanks, guys. Would you tell them to bring some aspirin, an ice pack and a stretcher while you’re at it?

Seattle officials say that the guards appear to have done their job properly. The training manual the guards follow says “Never become involved in enforcement actions.” Continue reading →

Correction: S.C. Law Still Ridiculous, But Not Brilliant

/ Jack Marshall / 6 Comments

It appears that South Carolina’s mandated registration of “subversive agents” is far from new, as erroneously reported here. The law dates from 1951—when Joe McCarthy was in full flower—so it is clearly not aimed at terrorists, but at “Commies,” being a relic of the Red Scare at the dawn of the Cold War. Apparently the legislature has attempted to repeal it in recent years and failed, but that doesn’t make the law any less archaic.

<Sigh!>

Blogs like this one rely on secondary sources, and when one of them jumps the gun or gets its facts wrong, the result is that we end up aiding and abetting negligent misinformation. True: Ethics Alarms is in the business of adding ethics perspective to news stories and current events as it understands them, so the analysis can sometimes still be useful even if the facts are wrong. That is insufficient justification for contributing to misinformation, however. The key, as usual, is trust. I will do the best I can to get the facts right, hope that my readers correct me when they are wrong, and be ready to correct the record.

As for South Carolina’s silly law, perhaps the revived publicity of its 1951 paranoia will embarrass it into finally getting this dinosaur off the books. That will constitute a good result from a botched story, I suppose.

Many thanks to Sherrif Ray Nash, who tracked down the truth for Ethics Alarms.