Law & Law Enforcement

This War Crimes Prosecution Is Vengeance, Not Justice

/ Jack Marshall / 29 Comments

After Ethics Alarms looked at the case of a German tennis player freaking out because a fan quoted the Nazi-era lyrics of the German National anthem while he was playing a match, I found out that the German justice system has metaphorically said, “Hold my beer!”

German prosecutors announced last week that they have charged a 98-year-old man with being an accessory to 3,300 murders because he served as a guard at the Sachsenhausen concentration camp between 1943 and 1945. The indictment states that he “supported the cruel and malicious killing of thousands of prisoners as a member of the SS guard detail.”In recent years, German courts have ruled that people who helped a Nazi death camp function can be prosecuted as accessories to the extermination there without direct evidence that they participated in any particular deaths.

If a trial goes forward, the unnamed defendant will be tried as a juvenile. He was only 17 when he was required to be a concentration camp guard.

I certainly hope putting a 98-year-old man through the ordeal of a trial and, if he lives long enough, imprisonment for not opposing the Hitler regime as a teenager when the adults around him were going mad makes Germans feel better.

The fact that this cruel prosecution is being brought underlines the deep cultural problems that led Germany to Hitler, and shows that they still are distorting the nation’s understanding of right and wrong.

More On The Fake Defendant Ploy

/ Jack Marshall / 4 Comments

Yesterday’s post about the lawyer facing disciplinary charges for secretly having someone else pretend to be her client in a hearing that would involve an alleged victim of a hit-and run identifying the defendant in court sparked references to Perry Mason and “Better Call Saul’s” central unethical lawyer using the same trick. I’ve also included a discussion of this tactic in my ethics orientation presentation for new bar members for many years. As some commenters pointed out, in court IDs where the alleged perpetrator of a crime is sitting next to the defense attorney at defense counsel’s table are inherently unfair. Courts have pointed this out too. The “fake defendant” ploy has been justified as avoiding that problem.

However, it isn’t nice to fool the judge. If a lawyer suspects that an alleged victim can’t identify his or her client and will point at anyone in the chair next to defense counsel, having someone who might resemble the defendant (or not) sit where the defendant would be expected to sit while the real defendant sits elsewhere in court might be permitted, but the judge has to be told about the plan and asked to approve it in advance. Not doing so almost guarantees a criminal contempt citation for the lawyer, maybe a mistrial, and eventual bar discipline. In addition, the lawyer cannot and must not refer to the fake defendant as his or her client by word or body language other than having the individual sitting at the lawyer’s table. Most jurisdictions have rules limiting who sits at counsel tables; that’s why Perry Mason’s ploy of using Della, his loyal legal secretary, to confuse the witness might have been at least legal in Los Angeles when he tried it.

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Now THAT’S An Unethical Lawyer…And An Ethics Dunce Too!

/ Jack Marshall / 12 Comments

Lawyer Nicolle T. Phair of Sanford, North Carolina was representing a client in an alleged hit-and-run accident in Lee County, North Carolina, and thought she had an idea for a strategem worthy of Perry Mason. At a hearing, the victim of the accident was going to be asked to identify the defendant, Phair’s client. Shortly before the hearing began, the attorney asked her client to step outside the courtroom. She then went to another courtroom and asked a party in a civil case to “do her a favor.” The favor was to stand beside her in court in the hit-and-run hearing so the victim might identify the wrong man as the driver. Instant reasonable doubt! Brilliant!

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A Cautionary Tale: The Worst Social Media Influencer Ever?

/ Jack Marshall / 1 Comment

(Don’t bet on it.)

Here at Ethics Alarms we try to steer clear of posts on conduct that is so obviously unethical that even the dimmest MSNBC host could figure it out. Normally, a mother being arrested after one of her kids escapes from the home, emaciated and with restraint marks, and begs a next door neighbor for help, would fall into this category. But this mother was a renowned web expert on parenting, with a popular Instagram account and YouTube channel. Her @moms_of_truth account on Instagram had 341,000 followers, and until it was mysteriously shut down last year, her “8 Passengers” YouTube channel (named after her, her husband, and their six kids)had a very profitable subscriber base of almost 2.3 million.

Ruby Franke, the wise and admired mom, was arrested and charged with two counts of aggravated child abuse in Ivins, Utah this week. A press release issued by the Santa Clara-Ivins Public Safety Department stated that on Aug. 30, 2023 “a report came into our dispatch center regarding a juvenile asking for help.” Franke’s son, 12, had “climbed out of a window and ran to a neighbor’s home,” according to the police booking affidavit. The boy asked the neighbor for food and water. “The neighbor observed duct tape on (the boy’s) ankles and wrists and contacted law enforcement. Upon arrival, law enforcement judged the boy’s wounds and malnourishment to be “severe.”

Funny, Ruby never discussed that child-rearing technique on the web…

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Officials And Leaders Who Conservatives Consider Essential Bulwarks Of Constitutional Government Really Have To Stop Relying On “The King’s Pass”

/ Jack Marshall / 10 Comments

Take Clarence Thomas for example.

As with Donald Trump, who was the object of much rationalization here yesterday, Justice Thomas apparently is certain that conservative and Republican integrity don’t have the rigor to make him accountable for a truly staggering series of judicial ethics breaches. He is also apparently correct in this assumption.

Justice Thomas finally acknowledged publicly that he should have reported selling real estate at a suspicious profit to billionaire political donor Harlan Crow in 2014, a transaction disclosed by ProPublica earlier this year. The Crow company bought a string of properties for $133,363 from co-owners Thomas, his mother and the family of Thomas’ late brother, according to a state tax document and a deed. Conservative power-player Crow then owned the house where a Supreme Court Justice’s elderly mother was living—hey, no big deal!—and soon contractors began tens of thousands of dollars of improvements on the two-bedroom, one-bathroom home. Although a federal disclosure law requires SCOTUS Justices and other officials to disclose the details of most real estate sales over $1,000, Thomas never deigned to mention this convenient and inherently suspicious transaction. You know, that “appearance of impropriety” thingy?

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“Curmie’s Conjectures”: Donald Trump Has No Convictions, But He Has No Convictions

/ Jack Marshall / 22 Comments

by Curmie

[Notes from your host: 1) Curmie and I did not coordinate our posts, and 2) as usual, his erudition puts me to shame.]

***

I’m currently in the process of moving into a new office which is far too small to accommodate my collection of books, even after I gave away over 1000 of them.  One of the volumes I still haven’t figured out what to do with is my Penguin paperback copy of Thucydides’ “History of the Peloponnesian War,” purchased over 40 years ago for a course I took in grad school.

Coming across that volume triggered a memory of struggling with one of that book’s most famous sections, the Stasis in Corcyra.  It wasn’t that the passages in question were too confusing.  Rather, it was that word “stasis”; no one would describe the civil war on the island of Corcyra in 427 BCE as static. 

A little digging (well, actually more than a little, as these were the days before the internet) revealed that virtually all English translations of those passages of Thucydides had simply adopted a cognate of the Greek word στάσις (stásis), meaning roughly “that which is stood up.”  So something firmly placed and unchanging would be static, or in a state of stasis.  But the word also carried the meaning of “standing up against,” in the sense of resisting authority.  So the insurrection on Corcyra was, in fact, an act of stasis.

These linguistic constructions, known as contranyms, auto-antonyms, or “Janus words” (among other locutions) are not uncommon.  We all understand that a peer might be a member of the English nobility or an equal, or that “it’s all downhill from there” might mean that the system is in decline or that the hard part is over and we can coast to the finish line.

I’m not sure if there’s a word for the variation on the theme that forms the title of this essay: the two meanings of the term are not in direct contradiction, but they lead to pretty close to opposite conclusions.  What I find interesting is that both definitions can apply simultaneously. 

That is, “having no convictions” can mean lacking a system of guiding principles, especially one involving a moral compass or an ethical center. It can also mean that the subject has never been convicted of a crime.  I’d argue that Donald Trump fits both descriptions rather well. 

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Snap Out Of It! Trump’s Latest Disqualifying Statement Is Signature Significance—Stop Pretending He Is A Rational Option To Elect President

/ Jack Marshall / 31 Comments

Asked by Glenn Beck in an interview “[I]f you’re president again, will you lock people up?”, Donald Trump, the supposed champion of democracy and heroic foe of the Democratic totalitarians, answered, “The answer is you have no choice because they’re doing it to us.” 

Dingdingdingdingding! This is signature significance, just like his earlier musings about suspending the Constitution. As I wrote earlier this year, “As divided as Americans are, it doesn’t appear that enough of them care about preserving democracy to do anything to preserve it. They only differ on the means by which they are willing to let it collapse.” Electing Donald Trump as President, with his sick “tit for tat,” “Do unto others as they do to you,” “vengeance is mine” approach to ethics magnified by his “the ends justify the means” orientation can’t possible “save” democracy. The most it can do is maximize the chances that the totalitarians we end up with aren’t socialists, anti-white bigots and addicted to toxic woke fantasies. That shouldn’t be good enough. It isn’t good enough, not for this nation. That so many still think it is depresses and frightens me greatly.

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Ethics Quote Of The Week: Lawyer John Eastman On The Georgia Trump Indictments

/ Jack Marshall / 7 Comments

“I am here today to surrender to an indictment that should never have been brought.  It represents a crossing of the Rubicon for our country, implicating the fundamental First Amendment right to petition the government for redress of grievances.  As troubling, it targets attorneys for their zealous advocacy on behalf of their clients, something attorneys are ethically bound to provide and which was attempted here by “formally challeng[ing] the results of the election through lawful and appropriate means.”  – An opportunity never afforded them in the Fulton County Superior Court. Each Defendant in this indictment, no less than any other American citizen, is entitled to rely upon the advice of counsel and the benefit of past legal precedent in challenging what former Vice President Pence described as, “serious allegations of voting irregularities and numerous instances of officials setting aside state election law” in the 2020 election.  The attempt to criminalize our rights to such redress with this indictment will have – and is already having – profound consequences for our system of justice. My legal team and I will vigorously contest every count of the indictment in which I am named, and also every count in which others are named, for which my knowledge of the relevant facts, law, and constitutional provisions may prove helpful.  I am confident that, when the law is faithfully applied in this proceeding, all of my co-defendants and I will be fully vindicated.”

John Eastman, respected conservative legal scholar, lawyer, law professor and former Dean of Chapman University Law School, as he surrendered last week to authorities on charges in the Georgia case alleging an illegal plot to overturn the Trump’s 2020 election loss.

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Ethics Dunce: Chicago Mayor Brandon Johnson

/ Jack Marshall / 24 Comments

This news item has the added advantage for me of adding to my file, now voluminous, of ridiculous legal theories that nonetheless cannot be sanctioned violations of Rule 3.1: Meritorious Claims & Contentions, aka. “Frivolous claims” when they are used as the justification for lawsuits. (The profession’s aversion to punishing lawyers for Hail Mary lawsuits apparently applies to all lawyers accept those representing Donald Trump.) Mostly, however, it demonstrates how completely incompetent another progressive big city mayor is when it comes to dealing with crime.

Chicago Mayor Brandon Johnson (D) announced yesterday that his crime-ridden hell-hole of city, rife with property crimes and murder, will be suing automakers Kia and Hyundai for “their failure to include industry-standard engine immobilizers in multiple models of their vehicles.” This, the theory goes, is why there are so many car thefts in the Windy City.

Yes, it’s the cars’ fault that they get stolen! It certainly isn’t the fault of the car thieves, whom the new mayor wants to see treated with compassion, care and as little punishment as possible. Even though the crime explosion in Chicago was the main reason he defeated the previous mayor, Lori Lightfoot (that, and the fact that she was dishonest and incompetent), Johnson’s plan to stop crime is pure John Lennon wishery: defund as much of the police as possible, seek “restorative justice” and “treatment over punishment,” and have judges who will avoid handing down jail sentences.

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Ethics Hero: Military Judge Col. Lanny J. Acosta Jr.

/ Jack Marshall / 10 Comments

Col. Lanny J. Acosta Jr, the military judge in the U.S.S. Cole bombing case, threw out confessions by the Saudi defendant Abd al-Rahim al-Nashiri in a 50-page decision yesterday. After all, the man accused of planning Al Qaeda’s suicide bombing on Oct. 12, 2000 in Yemen’s Aden Harbor that killed 17 U.S. sailors had been tortured by the CIA, or as th agency likes to describe it, “subjected to enhanced interrogation.” Yes, I seem to remember there was something in the Constitution that said you can’t do that. Quite a few things, actually.

Dirty Harry was also lectured on the same point, if I recall, 50 years ago.

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