Professions

Observations On The Instapundit’s Tweet

/ Jack Marshall / 7 Comments

reynolds-tweet

Yesterday, conservative law professor, author and blogger Glenn Reynolds learned that Twitter had suspended his account, and he wrote on his iconic website Instapundit...

Can’t imagine why they’d do that, except that it seems to be happening to a lot of people for no obvious reason. It’s as if, despite assurances to the contrary, Twitter is out to silence voices it disagrees with or something.

Then he learned that his offense was the above tweet. Reynolds wrote…

Sorry, blocking the interstate is dangerous, and trapping people in their cars is a threat. Driving on is self-preservation, especially when we’ve had mobs destroying property and injuring and killing people. But if Twitter doesn’t like me, I’m happy to stop providing them with free content.

and..

“Run them down” perhaps didn’t capture this fully, but it’s Twitter, where character limits stand in the way of nuance”

But one of Reynolds’ extra-curricular gigs (he is a University of Tennessee law professor) is monthly columnist for USA Today. After the progressive Furies took to social media and demanded that he be fired from the law school, dropped by the newspaper and forced to wander in the wilderness in sackcloth, Gannett’s paper suspended him for a month.

Reynolds was reinstated by Twitter after purging the offending tweet, and he issued this mea culpa to USA Today:

Wednesday night one of my 580,000 tweets blew up. I didn’t live up to my own standards, and I didn’t meet USA TODAY’s standards. For that I apologize, to USA TODAY readers and to my followers on social media.

I was following the riots in Charlotte, against a background of reports of violence. Joe Bruno of WSOC9 interviewed a driver whose truck had been stopped by a mob. Trapped in her cab, she “feared for her life” as her cargo was looted. Then I retweeted a report of mobs “stopping traffic and surrounding vehicles” with the comment, “Run them down.”

Those words can easily be taken to advocate drivers going out of their way to run down protesters. I meant no such thing, and I’m sorry it seemed I did. What I meant is that drivers who feel their lives are in danger from a violent mob should not stop their vehicles. I remember Reginald Denny, a truck driver who was beaten nearly to death by a mob during the 1992 Los Angeles riots. My tweet should have said, “Keep driving,” or “Don’t stop.”

I have always supported peaceful protests, speaking out against police militarization and excessive police violence in my USA TODAY columns, on my website and on Twitter itself. I understand why people misunderstood my tweet and regret that I was not clearer.

Today, Reynolds wrote on Instapundit:

TWITTER HAS UNBLOCKED MY ACCOUNT ON CONDITION OF DELETING THE OFFENDING TWEET. But lest I be accused of airbrushing, it’s preserved here. Still planning on quitting Twitter, though, after making a few points. Earlier post is here. UPDATE: From Nick Gillespie at Reason: In Defense Of InstaPundit’s Glenn Reynolds. “Whatever you think of the tastefulness of his suggestion regarding the protesters in Charlotte, the idea that he is seriously inciting any sort of actual or real threat is risible.”

Related: “Glenn Reynolds is old enough to remember Reginald Denny. (Look it up, kids.)”

and

SO MY USA TODAY COLUMN is suspended for a month. My statement is here. I don’t apologize for saying that you shouldn’t stop for angry mobs, even if they’re blocking your way. But I could have said it better

Observations:

Continue reading →

Why It’s Unethical For Journalists To “Fact Check” Donald Trump—Especially CNN Journalists

/ Jack Marshall / 11 Comments

Donald Trump

In Donald Trump’s meaningless statement yesterday, which was covered by the news media as if it was the revelation of the millennium, he  officially conceded that Barack Obama is a natural born U.S. citizen. He also used the silly media attention to drag out his announcement into a long campaign infomercial for which he didn’t have to pay a cent. Nice, and it serves the broadcast media right for giving any significance to a five-year-long trolling exercise.

Trump used the phony controversy over President Obama’s birth certificate to get publicity five years ago, because he is shameless. That’s all. Did he really think Obama was born in Kenya? Oh, who knows? He is an idiot, after all. Then again, he is a skilled professional troll. Whether he believed it or not, Trump used the issue to get attention then, and now has used his 180 degree reversal to get attention now. Obviously nothing has changed that would justify this flip-flop if he believed what he insisted was true for five years. A more transparently cynical and insincere retraction I cannot conceive. Who cares what Trump says he believes at any point, about anything?

But I digress. What really seemed to enrage the journalists who have embraced Rationalizations #28. The Revolutionary’s Excuse: “These are not ordinary times,” and #31. The Troublesome Luxury: “Ethics is a luxury we can’t afford right now” to anoint themselves as full-time volunteer members of the Hillary for President campaign, was that Trump said this:

“Hillary Clinton and her campaign of 2008 started the birther controversy. I finished it.”

Quoth the thoroughly partisan news media,

“ARRGH!!!!:

Continue reading →

Sometimes It All Comes Together…But First, A Song!

/ Jack Marshall / 8 Comments

As those who have read here for a while know, among my fondest passions, virtually life-long, are baseball,  theater and ethics. Today, I have the pleasure of seeing them all come together in a single event. How often does that happen?

At noon, I will be giving my most recent musical Continuing Legal Education ethics seminar, “Ethics Cabaret,” at Nationals Park in D.C. prior to the Mets-Nats game. “Ethics Cabaret,” like its six predecessors, presents legal ethics hypotheticals  as parodies of pop, rock, Broadway or country-western standards, presented by a professional performer. In this case, the performer is American Century Theater veteran Esther Covington, who accompanies herself on the keyboard. I write the songs that make the young lawyers cry, but she sings them, beautifully and often hilariously.

Speaking of Barry Manilow, my favorite segment of the seminar is the parody of one of his signature songs, which you can hear above—it’s an ear-worm, so be careful. The legal ethics version is about “Bridge of Spies” and the many quandaries raised in the film, which I examined in this post earlier this year. The parody is called “Who is the Client?,” lyrics-only copyrighted by ProEthics. Here they are….you can sing them along with Barry’s version! Continue reading →

Ethics Hypothetical: Rules, Compassion, Integrity, Fairness, And A Looming Race Card

/ Jack Marshall / 14 Comments

clock2

[The hypothetical is inspired by two recent events I witnessed in the past week.]

Preface: The state requires new bar admittees to take a one-day course covering the basics of practicing law in the jurisdiction—how the courts work, special procedural rules, unique aspects of local practice, horror stories, the works. They must complete the course or they can’t be certified, and the court-ordered series of lectures and presentations is held only once a month.

A company runs the mandatory curriculum under contract to the state, and is required to confirm in writing to the courts that its requirement have been fulfilled. One key requirement is that every attendee must be present for every minute of the presentations, except for brief emergencies, like using the rest rooms. The course administrators carefully monitor attendance. The published description of the course directs that once the course begins, theoretically at 9 am sharp, no late-comers will be admitted.

As you might imagine, missing the session can be quite a hardship, as participants often live and work in other jurisdictions.

The Event: It is 9:08 am on the day of the program, and the introductory video that begins the orientation is almost finished. It consists of interviews with members of the bar about the benefits of practicing in the state, the importance of ethical practice, etc: to say it is not substantive is an understatement. Literally nothing that is said and shown in the video is anything but boilerplate.

A young man, sweating profusely, bursts in the door, looking unhappy and desperate. “I’m sorry I’m sorry!” he babbles. He says that he had to drive up from a neighboring state and had an accident. “Can I still get in?” he pleads.

The male staffer responsible for the session chats briefly with an associate. The program was late starting, and this late arrival will miss nothing if he goes in now. “All right,” the honcho says as the young man heaves a sigh of relief. “I shouldn’t do this, but you haven’t missed anything.” As he goes into the auditorium, one can here the opening remarks of the first speaker, a judge. It is now 9:12 am, and another young man bursts through the door on a dead run. “My crazy cabbie’s been driving me all over the city for an hour!” he shouts. “I flew in last night from Arizona! Please, please, don’t make me do this again…I barely was able to afford this trip.” The administrator is wondering if he had seen the previous guy go into the auditorium. He’s heard this judge’s spiel many times: all that has been missed, to be honest, are a few (lame) jokes. “All right, all right, get in there quick!” he tells the new supplicant. “I’ll finish your paperwork during the break!” The kid looks like he’s going to cry, he’s so relieved.

I’m there, watching this (I’m on the program) and say to the administrator, “I bet this happens every time.” He says, “It does. I know that nobody misses anything that isn’t in the printed materials until 9:15, so it’s a hard stop after that.”

And another late arrival bursts through the door. It’s a bit after 9:14. The staffer has just told me that the final final deadline is 9:15, and it’s not that yet. This poor guy is bleeding through his pants,  has a big bruise on his face, and is saying something about a bicycle accident. By the time he gets himself settled—he is told that there is no time to clean up—it’s past 9:16. He starts toward the auditorium door as the other staffer says, “OK, that’s IT,” and starts to take the registration materials and lists away….just a very stressed young African-American woman enters, in plenty of time to see the bicycle rider, who is white, enter the auditorium. I can hear the judge through the open door. He’s still telling jokes, longer this time than usual.

Issues and Observations

1. The young woman was not admitted, and told that she had to come back another month. She too was from out of state. She also had a legitimate-sounding excuse.

  • Was that fair to her?
  • Should it have mattered that the program had not yet reached a serious stage?
  • She was told that 15 minutes was the absolute, unwaivable deadline. That was true, but it was not the deadline the company was contracted and pledged to enforce. That deadline was 9:00 am.

2. Should the explanations used by the latecomers play any part in the decision to allow them in? Why? Continue reading →

Ethics Quiz: Ammon Bundy’s Cowboy Boots

/ Jack Marshall / 36 Comments
Ammon Bundy. Nice look...that last name is a problem, though.

Ammon Bundy. Nice look…the jury should like it. That last name might be a problem, though.

Jury selection is was about to begin last week  in the trial of Ammon Bundy (Son of Cliven, no relation to Ted) and his fellow defendants who led an armed stand-off on federal lands in Oregon.  First, however, the judge in the case had to rule on Bundy’s lawyer’s motion demanding that the defendants, who are in custody, can wear neckties, belts and boots at trial as requested.

The U.S. Marshal’s Service  emailed  Bundy and the rest to alert them that certain  items of apparel wouldn’t be permitted at their trial: “Ties, Bows, Belts, Handkerchiefs, Cuff Links, Steel toe boots/shoes, Shoe laces, Shirt tie down straps, Safety pins, Shirt pocket pen protectors.” When U.S. District Judge Anna J. Brown Tuesday afternoon asked Barbara Alfono, the deputy U.S marshal in charge of the Bundy trial, about the requirement, she explained that security concerns were the source of the order. Those accessories could be used as weapons against deputy marshals or the defendants themselves, she said. As for the boots, they would interfere with the shackles that are placed around the defendants ankles as they are transported to and from the courthouse. (The shackles will be removed, because prior courts have ruled that they are prejudicial, making defendants look dangerous to the jury.)

J. Morgan Philpot,  Ammon Bundy’s marvelously named lawyer, argued that since his client is innocent until proven guilty, he should be allowed to wear the civilian clothes that he chooses.  “These men are cowboys,” Philpot wrote  in his motion, “and given that the jury will be assessing their authenticity and credibility, they should be able to present themselves to the jury in that manner.” He continued:

“We must consider, when he does so, how will he look? And what are the spot assumptions and impressions will the jury have about him when they see him in the kind of white socks and loafers he was wearing today, with his beltless trousers, and dressed in a formal suit without a tie,Just as significantly, how will the lack of belt, tie, or other apparel compare to others in the courtroom, as he and the other detained defendants are the only ones who will appear that way.”

The judge ruled against him.

Your Ethics Alarms Ethics Quiz of the Day:

Is it ethical for the system to prevent accused cowboys from looking like cowboys during their trial?

Continue reading →

Jacoby Ellsbury, Catcher’s Interference, And The Perplexing Ethics Problem Of “Using A Shield As A Sword”

/ Jack Marshall / 9 Comments

interference

I led two legal ethics seminars for the Oregon State Bar yesterday. For some reason the issue of “using a shield as a sword ” kept coming up.

“Using a shield as a sword” is when lawyers game the ethics rules. Many local bar associations include a pledge within their creeds promising not to intentionally use the ethics rules as a tactical weapon; still, it’s not an enforceable promise. Examples are limited only by a lawyer’s devious ingenuity, but they usual involve one side creating a conflict of interest for the opposing firm or lawyer that will force the lawyer to withdraw from the case. One ploy: a lawyer recruits a key expert witness specifically because she was once a client of the the lawyer on the other side, making it impossible for her to be impeached on the witness stand by that lawyer because he would have confidential information about her that he would be bound to keep secret, even while being required to represent his current client by ripping her credibility to shreds.

What does this have to do with Yankee centerfielder Jacoby Ellsbury? Well, Ellsbury is in the process of shattering an obscure baseball record: number of times reached base on catcher’s interference during a season. Catcher’s interference refers to instances in which a catcher makes any contact with a batter or his bat during a pitch. Usually, this involves the batter’s bat hitting the catcher’s glove, as in the photo above. When that happens, a player is awarded first base. The rule is based on fairness and  designed to protect the batter, but apparently Ellsbury has perfected the weird practice of using it as an offensive weapon.

Jacoby Ellsbury became the single-season record holder in catcher’s interference calls  in July with his ninth instance  getting rewarded for it. The record was formerly held by Roberto Kelly, who did this eight times in 1992.  Since breaking the record, Ellsbury has gotten catcher’s interference called three more times, for a current total of 11 with almost a month  left to the season. He is also second all-time in catcher’s interference with 23. The career record belongs to Pete Rose with 29; since Rose is baseball’s all-time leader in games played and career at bats, we would expect him to hold this record. No one else in baseball history has more than 18. Ellsbury is only five catcher’s interferences shy of Rose’s mark, and has done it in less than a third of the at bats. Continue reading →

The Cos Plays The Race Card

/ Jack Marshall / 50 Comments

race_cardBill Cosby’s lawyer, Brian McMonagle,  issued a statement this week claiming that the comedy legend’s legal problems are the result of racial bias and prejudice. He really did.

“Mr. Cosby is no stranger to discrimination and racial hatred, and throughout his career Mr. Cosby has always used his voice and his celebrity to highlight the commonalities and has portrayed the differences that are not negative — no matter the race, gender and religion of a person. Yet over the last 14 months, Mr. Cosby and those who have supported him have been ignored while lawyers like Gloria Allred hold press conferences to accuse him of crimes for unwitnessed events that allegedly occurred almost a half-century earlier. The time has come to shine a spotlight on the trampling of Mr. Cosby’s civil rights. Gloria Allred apparently loves the media spotlight more than she cares about justice. She calls herself a civil rights attorney, but her campaign against Mr. Cosby builds on racial bias and prejudice that can pollute the court of public opinion. And when the media repeats her accusations — with no evidence, no trial and no jury — we are moved backwards as a country and away from the America that our civil rights leaders sacrificed so much to create.”

I don’t blame McMonagle, and nobody else should. He’s doing what he can to defend his client, who looks about as guilty as a man can. Nor did he say this without the approval of his client. Lawyers discuss their strategy with clients: if Cosby didn’t want to sink this low and look this desperate, he didn’t have to. Then I would have been able to salvage a slim iota of respect for the man.

It isn’t worth much time or thought discussing how ridiculous this accusation is. Bill Cosby? White America’s darling? The Jello pudding man, the charming interviewer of kids, the educator who preached to black families that they need to raise their children to reject hip-hop culture? Whites made Cosby rich, powerful, and once, the most popular, respected and influential celebrity of any color in the nation. And suddenly they turned on him when they realized he was black?

The claim is an insult to African-Americans who really do face bias and discrimination. More important, however, it is so depressing. Is there any prominent African-American in the the public eye who is capable of not playing the race card when he or she is in trouble? I held out hope that Bill Cosby, as loathsome as we now know he is, might be an exception if only because the claim in his case is so, so absurd. Let’s see, which is the reason for Bill’s fall: a hundred women of all races coming forward to detail almost identical accounts of the comedian drugging and sexually assaulting them, or racial prejudice? Gee, let me think; this is a tough one. Never mind, though: apparently this alibi is so ingrained in black culture, so beaten into the brains of American blacks, so exploited by race hucksters and so much a foundation of the left’s politics that it exists as a permanent “In case of a crisis, break glass” last resort that is an African-American’s secret weapon—after all, when whites screw up, they can’t claim anti-white bias, though trends in government, justice and academia may be changing that.

If Roger Ailes were black, he would have attributed his fall at Fox to racial prejudice.

Clarence Thomas played the race card. So has Obama. O.J. Barry Bonds. Herman Cain. Susan Rice. Eric Holder. Kanye West, though in his case it is dwarfed by his other outrages. This is kind of an anti-matter version of “white privilege”: while whites, we are told, are blissfully unaware of all the ways their success, if they have any, is based on systemic advantages in the culture, blacks are immersed in the idea that they are being persecuted because of race and led by role models and leaders to develop a self-image that can render them incapable of ever knowing when the problem might be their own conduct rather than oppression by others. Continue reading →

Ethics Quiz: Ad Hominem Or Not?

/ Jack Marshall / 18 Comments

I frequently find myself correcting commenters who accuse me of ad hominem attack when I diagnose their problem, based on their arguments as jerkism or mental deficiency. (I recently found one legal blogger who actually states that if a commenter uses the term incorrectly, the comment will be rejected). Ad hominem is an argument fallacy that holds that if a messenger is flawed, his or her argument can’t be valid. It’s a cheap debate tactic, and unethical. If I conclude, however, that your argument is so idiotic that it could only be devised by an  idiot and thus designate you as one in so many words (because you have a right to know), that’s not ad hominem.

African-American pastor Mark Burns is a rafter-shaking speaker and an unusual and useful advocate for Donald Trump. He has been on cable news segments frequently, and even spoke at the GOP Convention. Being black, he is obviously roundly detested by those who regard Trump as a bigot, indeed by those who just dislike Trump generally. This almost certainly includes journalists on CNN, a Hillary stronghold.

A member of the black fraternity Kappa Alpha Psi alerted CNN that  Burns had claimed to have been a member,  but there was no record to support it. This set CNN on a quest to check all of Burns’ credentials and biography items, and it found that he had other dubious claims. Confronted on the air by (also African-American) CNN reporter Victor Blackwell with these discrepancies, Burns stuttered, humina-huminaed, protested, lied (his web site bio had been “manipulated” in some way, he said—the Weiner Excuse: “I’ve been hacked!”), and finally stormed out of the interview, which is to say, he ran.

Mark Burns is a Trump ally and supporter of note because he is a black pastor. He is still a black pastor. He makes a case for why blacks should support Doonald Trump. That case does not in any way rely on his military record or where he went to school, or, for that matter, how well he responds to having his honesty and integrity challenged on TV.

Your Ethics Alarms Ethics Quiz of the Day is...

“Was CNN’s attack on Pastor Burns fair and responsible, or..

Was it an unethical ad hominem attack designed to discredit a Donald Trump ally?”

Continue reading →

Res Ipsa Loquitur! The News Media’s Anti-Trump Bias Expressed As Naked Censorship

/ Jack Marshall / 14 Comments

first version

“Nah, the news media isn’t biased! It’s just right wing Faux News lovers who say that! The news media OTHER than Fox is fair and objective!”

I get these protests all the time, and I am considering being more direct and unpleasant in my responses when I do. For this statement is either proof of ignorance, stupidity, or dishonesty. There is no fourth option, and the recent example I will now describe shows why.

Earlier this week, a woman noticed a four-month-old girl in a locked car in a New Jersey Kohl’s parking lot . She screamed, alerting passer-by Steve Eckel, the New York Daily News reported.  Eckel called 911 but didn’t wait: he used a sledgehammer to break a window in the car, rescuing the cooking child.

During an HLN interview on cable TV,  the retired New Jersey police officer wore a T-shirt with the legend, “2016 Trump for President.” Yet when the CNN headline news channel ran the interview an hour later, the message was blurred out.

Would a pro-Hillary Clinton, pro-Obama, Black Lives Matter, Planned Parenthood, anti-gun or virtually any other non-obscene message or image be so censored? Never. My assumption, if I saw such a blur, would be that the T-shirt was wildly offensive in some undeniable way, making that blur a slur on Eckel’s character.  (A pro-Trump T-shirt doesn’t exactly speak well of him either, but that’s irrelevant.) Continue reading →

No, Washington Post, This Isn’t The Unethical Lawyer’s Statement You Falsely Suggested It Was

/ Jack Marshall / 32 Comments

rapture

Lyle Jeffs, the polygamist religious leader indicted in a huge food stamp fraud, violated his house arrest this summer by coating his ankle monitor in olive oil, sliding it off, and vanishing. As his lawyer, Jeffs’s  public defender attorney cannot help authorities find her missing client (nor can she assist Jeffs in eluding the police). Thus Kathryn Nester filed court documents last week asking for a continuance, writing,

“As this Court is well aware, Mr. Jeffs is currently not available to inform his counsel whether or not he agrees to the Continuance. Whether his absence is based on absconding, as oft alleged by the Government in their filings, or whether he was taken and secreted against his will, or whether he experienced the miracle of rapture is unknown to counsel.”

Washington Post reporter Cleve R. Wootson Jr. describes this development as follows:

“Jeffs’s attorney has put forth a divine reason for his disappearance — the miracle of rapture..”

If  Nester really did claim that the Rapture was the reason Jeffs vanished, she would be engaging in sanctionable dishonesty and a misrepresentation to the court. The one who is lying, however, is Wootson and, as his editors let him do it, the Post. All Nester said was that she did not know why Jeffs was missing, and mentioned three of many alternative fates that she had no knowledge of whatsoever. Her job is to try to defend him from additional criminal charges, and at this point, that means arguing that nobody can say with certainly that he is a fugitive from justice. That is the opposite of saying “one of these things happened.” It is saying “I don’t know what is behind his disappearance, and neither does the FBI. Here are three of many explanation that I cannot, based on my knowledge, rule out.” Continue reading →