Law & Law Enforcement

When Polling Is Unethical

/ Jack Marshall / 6 Comments

Gallup is both one of the oldest polling organizations and among the closest to objective, making it doubly irresponsible when it injects nonsense and ignorance into policy debates. This is what it did with two recent polls, headlined thusly: “Steady 58% of Americans Do Not Want Roe v. Wade Overturned” and “‘Pro-Choice’ Identification Rises to Near Record High in U.S.”

The immediate response here is “So what?” Abortion, at least since the misbegotten Roe v. Wade SCOTUS ruling in 1973, is matter of Constitutional law and individual rights, and neither of these are determined by popular opinion.. Nor should they be. Yet the reflex refrain of demagogues and the habitually dishonest when they are out of legitimate arguments is “the public overwhelmingly supports/opposes [fill in the blank],” a contention that inevitably depends on polling.

The threshold question Gallup asked its respondents on the abortion issue was “With respect to the abortion issue, would you consider yourself to be pro-choice or pro-life?” Useless. Did Gallup define what “pro-choice” or “pro-life” meant? Nope. Do “pro-choice” Americans believe a potential mother should be able to “choose” to kill a viable fetus right up to the moment of birth? Do they believe that abortion involves the taking of a life at any point? Ever? Do they care? Who knows? I don’t think most of those who responded that they were “pro-choice” know. It’s garbage in, garbage out: the poll results are meaningless, but they will still be cited as if they are profound.

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Ethics Alarms Encore: “Possessed Lawyer Ethics”

/ Jack Marshall / 1 Comment

The best legal ethics story I have ever heard and probably ever will hear arose in Arizona in 2010. I have regaled CLE seminars with it many times since, and it is ever green. After I mentioned the case again today at a Federal Bar convention program, I found myself wondering if I had ever posted about the weird episode on Ethics Alarms. Indeed I had, but it was way back in September of 2010.Here’s how long ago that was: Instagram didn’t yet exist, the statement that Donald Trump would be the next President might get you committed, and the only commenter on the post was “JJ,” whom I have completely forgotten.

Clearly, it’s time for an encore, so here it is, slightly expanded.

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Is it unethical for a lawyer to claim she is possessed by a client’s dead wife?

This  question has been puzzling professional responsibility experts for decades. Okay, not really. In fact, surprisingly, it just doesn’t happen all that often. But in Arizona, a lawyer is now facing suspension for claiming that she was possessed by the spirit of a client’s dead wife, then lying about it under oath. The dead wife is being accused of illegal immigration.

OK, I made up that part, too.

Sorry.

The ABA Journal reports that the lawyer, Charna Johnson, began representing a client during his divorce proceedings. While the divorce was in process,  the client’s wife, who was fighting many demons even before she got in the possession business, committed suicide. Johnson then represented the husband in probate proceedings, but one day became convinced, according to her sworn testimony and that of two witnesses, that the client’s wife had possessed her, like that real demon, Pazuzu. Continue reading →

California Makes Its Values Depressingly Clear: Minority Privilege Over Children’s Lives

/ Jack Marshall / 23 Comments

Forget it, Jake, it’s California Town.

Two days after the Uvalde shooting, as all of California Democrats, progressives and anti-gun zealots were metaphorically screaming “Murderers!” at those who aren’t willing to gut the Second Amendment to pretend that various restrictions would stop evil lunatics like Ramos, the California State Senate voted to end a legal requirement that students who threaten violence against school officials be reported.

The old law mandated that whenever a school official was “attacked, assaulted, or physically threatened by any pupil,” staff must “promptly report the incident to specified law enforcement authorities.”

Gone. So, for example, the teacher in that screenshot above, taken from a video of an in-class assault, would not be obligated to report it. How odd that the state would eliminate such a restriction as the question rages over how so many people aware that the Uvalde shooter was an anti-social, gun-obsessed menace never alerted authorities. What could possibly be California’s thinking?

Oh, come on. It’s easy! I guessed—that proves it’s easy. The ACLU’s statement on why it supports the repeal tells all:

Decades of research show the long-term harm to young people of even minimal contact with the juvenile or criminal legal systems. Once students make contact with law enforcement, they are less likely to graduate high school and more likely to wind up in jail or prison. These harms fall disproportionately on students from marginalized groups: Black, Indigenous, and Latinx students, as well as students with disabilities, are disproportionately referred to law enforcement, cited, and arrested.

Taking the photo above as an example, that student is merely the victim of centuries of systemic racism, and justifiably enraged by a racist white supremacist culture. Reporting him just compounds the injustice.

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Observations On The Acquittal Of Clinton Lawyer Michael Sussmann

/ Jack Marshall / 19 Comments

A federal jury today delivered what is widely being called a major setback to special counsel John Durham’s effort to get to the bottom, or at least part of the bottom, of the partisan Democratic plot to bring down the Trump administration. It acquitted lawyer Michael Sussmann on the charge that he lied to the FBI in 2016 while acting on behalf of the Hillary Clinton campaign, thus causing it to pursue a false investigation.

I must say: I thought this might happen. The Washington Post has long posited a defense that I regarded as cynical and depressing, but it felt like something a jury, especially a C.C. jury, might swallow. Sussman’s lies to the FBI didn’t matter, and neither did Hillary Clinton’s efforts to use what she knew was false information to sic the FBI on Trump. The FBI already knew that the case against Trump was weak and based on garbage, but it didn’t matter. Like so many others, it was determined to keep digging until they got him. And like the Sheldon-maddening argument on “Big Bang Theory” that nothing Indiana Jones does in “Raiders of the Lost Ark” matters (the Ark ends up buried anyway), if Sussman’s lie didn’t have any impact, it’s all “no harm, no foul.” The “Deep State” FBI was already so committed to bringing down Trump that it didn’t need fake clues to justify its investigation investigation. The FBI, like most of the D.C. establishment, was so certain that Donald Trump was…well, cue “The Birds” lady… Continue reading →

Update On The Uvalde Massacre Extension Of The Sandy Hook Ethics Train Wreck, Part 4: ‘Don’t Confuse Us With Facts, Our Minds Are Made Up!’ Edition

/ Jack Marshall / 26 Comments

Well, I tried again to discuss gun regulation with my next door neighbor following the Uvalde shooting. (The first time was a week before the shooting, discussed here.) We were talking over the proverbial fence about the Uvalde police chief, and her husband said, “Watch: now the whole thing will be blamed on him.” Before I could get out, “Well, not the whole thing, but you have to agree that the police share some resp…,” my neighbor said, “They’ll blame everything but the real cause: there is no reason to allow people to buy automatic weapons.”

“To be completely accurate,” I said cheerily, “you can’t legally buy automatic weapons. That guy in Texas had a semi-automatic.” She literally ignored that distinction. We talked for another 15 minutes, and she kept saying “automatic weapon.” “It’s just the difference between 400 bullets a minute and 300 anyway,” her husband offered. I assume he believes that; when I noted the same distinction between semi-automatic and automatic in a discussion on Facebook, my sister called it “semantics.” It’s not semantics! Moreover, an AR-15 can get off about 40 accurate rounds in the hands of a trained shooter, and about 25 when being used by someone like Ramos. An AK-47, a genuine “assault rifle,” fires about 600 rounds a minute. Hmmm…40 vs. 600. I’d say that’s a material difference. But my neighbor didn’t want to hear it, and didn’t. Continue reading →

What’s This? An Unemotional, Unbiased, Rational Analysis Of The Gun Debate In The Wake Of The Uvalde Shooting?

/ Jack Marshall / 2 Comments

Indeed. Not surprisingly, it comes from the fertile mind of Prof. Eugene Volokh, proprietor of the esteemed legal scholarship blog The Volokh Conspiracy, now hanging out at Reason, after a brief residency at the Washington Post a long tenure as an independent site. Volokh takes his cue from the recent story, predictably buried by the mainstream media but fortuitously timed in the wake of the tragedy in Texas, of a gun-owning and legally-carrying woman in West Virginia who was attending a party when a man who began firing an AR-15-style rifle into the crowd. She drew her weapon and shot him dead before anyone was wounded.

Volokh asks,

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Law vs Ethics: A SCOTUS Decision Rings Ethics Alarms

/ Jack Marshall / 14 Comments

It’s not surprising that last week’s decision in the Arizona case of Shinn v. Ramirez and Jones didn’t get much coverage outside of the legal media. The decision is procedural rather than substantive, and the majority opinion by Justice Thomas in the 6-3 holding is hard sledding. Nonetheless, it is a classic example of law trumping ethics. The Justice Sotomayor dissent, joined by the other two liberal justices, argues that it trumps law as well.

I would not argue that law must never trump ethics, for law requires consistency and systemic application over the long term to have credibility and integrity. However, Shinn involves a man facing the death penalty, and the decision by the conservative justices chose the virtues of finality over the possibility that the government might be executing an innocent man.

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Morning Ethics Warm-Up, 5/26/2022: Mug Censorship, A Scientist Is Cancelled, And Happy Birthday Duke!

/ Jack Marshall / 21 Comments

John Wayne was born Marion Robert Morrison on this date in 1907, in Winterset, Iowa. His family eventually moved to Glendale, California, where he grew up and attended USC on a football scholarship. Through a series of events too complex to write about here, Wayne found his way into movies and eventually devoted his career to the mission of creating of an iconic American male hero. That creation, which included some dark elements as well as admirable ones (See “Red River,” “The Searchers” and “The Man Who Shot Liberty Valance”) that still has a strong influence, and I believe an overwhelmingly positive one, on the culture.

In this he was assisted by two of the greatest of American film directors, Howard Hawks and John Ford, but creating “John Wayne” was Marion Morrison’s life’s work, to the extent where he refused to shoot a character (who has shot him and was running away) in the back in his final film, “The Shootist,” stating that it would violate the principles “John Wayne” stood for.

The man was not the character and didn’t claim to be. He was well-read, preferred to wear sports jackets and slacks, loved chess and by Hollywood standards—not a high bar admittedly— was an intellectual. Wayne once said that he never though of himself as John Wayne and still had “Marion Morrison” locked in his brain. They called him “Duke” in his pre-Wayne days, so he preferred that name off camera.

There are only five genuine Hollywood icons: Chaplin, Marilyn Monroe, Shirley Temple, Fred Astaire and John Wayne, and despite efforts to “cancel” him, Wayne remains the most vibrant, influential, and visible of the group. When I was teaching ethics to lawyers in Mongolia, the judges and lawyers knew virtually nothing about American culture, but they knew (and admired) John Wayne.

Mission accomplished.

1. I’m old enough to remember when it was conservatives who were always trying to censor free speech...apparently many triggered Democrats on social media are demanding that the websites that sell this mug be shut down, or that the mug be censored “like those racist Dr. Seuss books.”

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On “Correct Pronouns,” Part I: Roxane Gay

/ Jack Marshall / 4 Comments

It tells you pretty much all you need to know about the biases of the New York Times that its workplace ethics column, “Work Friend,” is authored by race-obsessed, radical, and combative gay feminist Roxane Gay. No biases there! She has also been described here as a prolific writer of prose and fiction and a visiting professor at Yale, and that’s all accurate too. However, her biases increasingly poison her advice as thoroughly as they poison her opinion columns.

Her last two of those for the Times were a laborious spin job to make Will Smith’s attack on Chris Rock at the Oscars somehow virtuous (“a rare moment when a Black woman was publicly defended”) and a standard issue rant against the likely Supreme Court ruling striking down Roe.

Ugh. I have to pause a bit here because I have concluded that Gay is too often intellectually and rhetorically dishonest because of her ideological mission, and people like that shouldn’t have regular platforms (or advice columns) in the New York Times. Here is a representative line from that second essay: “[W]e should not live in a world where someone who is raped is forced to carry a pregnancy to term because a minority of Americans believe the unborn are more important than the people who give birth to them.”

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You Didn’t Really Think That It Was Only The Catholic Church That Had This Problem, Did You?

/ Jack Marshall / 21 Comments

From the Houston Chronicle:

For 20 years, leaders of the Southern Baptist Convention — including a former president now accused of sexual assault — routinely silenced and disparaged sexual abuse survivors, ignored calls for policies to stop predators, and dismissed reforms that they privately said could protect children but might cost the SBC money if abuse victims later sued…The historic, nearly 400-page report details how a small, insular and influential group of leaders “singularly focused on avoiding liability for the SBC to the exclusion of other considerations” to prevent abuse. The report was published by Guidepost Solutions, an independent firm that conducted 330 interviews and reviewed two decades of internal SBC files in the seven-month investigation….

“Survivors and others who reported abuse were ignored, disbelieved, or met with the constant refrain that the SBC could take no action due to its (structure) — even if it meant that convicted molesters continued in ministry with no notice or warning to their current church or congregation,” Guidepost’s report concluded….

Above are some of the 220 people who, since 1998, worked or volunteered in Southern Baptist churches and were sentenced for sex crimes. Continue reading →