appeals

Ethics Heroes: The Appeals Court For The Commonwealth Of Massachusetts

/ Jack Marshall / 10 Comments

I am not honoring the appeals court that just upheld the lower court judgment in my favor in a two-year old (and probably not over yet) frivolous lawsuit against my for defamation by an angry ex-Ethics Alarms commenter. The court’s decision rejecting the plaintiff’s appeal was dictated by precedent and black letter law, as was the decision in the original case. It took no special courage or integrity to hold so, and in fact any other result would have evinced rank incompetence.

No, I am awarding the court Ethics Hero status after receiving today its  published opinion in case n. 18-p-1605, where the judgement of the lower court judge was affirmed. It is officially a summary decision, and thus not binding precedent, since the usual details a full appellate opinion would contain are missing. However, in the eight page opinion affirming the lower court dismissal of the complaint, the judges are impressively restrained, respectful, and thorough. They manage this despite the fact that the lawsuit was doomed from the beginning, without merit or law on its side. The persistence of the plaintiff has wasted taxpayer money (and mine) and occupied time the judges needed to address more serious and legitimate matters.

Nonetheless, the fact that a pro se litigant is able to receive more than perfunctory handling of even a complaint this misbegotten and trivial speaks well for our system, and very well for the judges. Despite all the attacks claiming that our system only caring about ‘justice for the rich,” a pro se litigant seeking justice (as he saw it) and using confused, garbled and outrageously long documents to that end,  cannot deny that his case and arguments were ignored. He lacked the financial resources to hire a lawyer to pursue them (though I wonder if any lawyer would have accepted the representation) and represented himself—rather badly, but still, he took his best shot. Continue reading →

Aaron Hernandez And The Weird Legal Doctrine Of Abatement Ab Initio

/ Jack Marshall / 7 Comments

The predator priest, the corrupt CEO, and the murderous Patriot, all innocent because they’re dead….

Massachusetts judge Judge E. Susan Garsh ruled that the state’s law required her to vacate the 2015 murder conviction of former New England Patriots star Aaron Hernandez. Because Hernandez’s appeal was pending when he committed suicide in his cell, she said,  the common law doctrine known as abatement ab initio applied: a defendant’s death before an appeal erases his conviction. Prosecutors argued that Hernandez’s purpose in hanging himself on April 19 was to to void his conviction, but Judge Garsh responded that she was bound to follow state law anyway, especially since Hernandez’s motives were unknown. She had presided at the trial in which a jury found Hernandez  guilty beyond a reasonable doubt of the murder of semi-professional football player Odin Lloyd.

The fact that some legal and ethical puzzles have proven unsolvable despite troubling lawyers, judges, legislators and scholars for decades (and sometimes centuries) is one of the best proofs I know for The Ethics Incompleteness Principle, which holds that no rule or principle makes sense in all circumstances, and that human beings are incapable of articulating perfect laws and rules that will work as intended in every case. Abatement ab initio is a classic example.

Abatement is the dismissal or discontinuance of a legal proceeding “for a reason unrelated to the merits of the claim.” It is available in both a civil and  criminal context. Traditionally, the death of a criminal defendant following conviction  but before an appeal can be made mandates abatement. The effect of  the doctrine is to discontinue all proceedings  and to dismiss the appeal as moot, overturn the conviction, and dismiss the indictment. The deceased defendant reverts back to his status before being charged. In the eyes of the law, he is innocent…again. Continue reading →

Ethics Dunce: The Ninth Circuit Court Of Appeals

/ Jack Marshall / 11 Comments
The unethical prosecutor in US v, Flores. Watch out for her!

The unethical prosecutor in State v. Flores. Watch out for her!

It’s always heartening to see a court cite the 1935 Supreme Court case of  Berger v. United States, 295 U.S. 78, (1935), famous in legal ethics circles for its ringing statement that government lawyers must understand that their obligation “in a criminal prosecution is not that it shall win . . . , but that justice shall be done.”  The principle has been extended by some judges to civil cases as well, making the point that the government in any legal dispute should be interested only in the best interests of citizens and getting the case right. It is less heartening when the cite is in a dissent, as in this case.

The Ninth Circuit, reviewing a conviction for illegal drug importation, conceded that the prosecutor crossed into unethical territory by misstating the law,misstating the defendant’s testimony, and improperly vouching for a witness. Nonetheless, the court in State v. Flores concluded that this misconduct didn’t rise to the level of “plain error,” meaning that the defendant would have been found guilty anyway:

“In sum, while the government misrepresented Flores’s testimony and misstated the law on multiple occasions, in the context of the trial as a whole, it is unlikely that the jury was misled about the law or the facts.”

That’s right: the government misrepresented facts and law, but the jury was probably not misled. Continue reading →

The Murderer and The Unethical Powerpoint

/ Jack Marshall / 5 Comments

Powerpoint slide

Why didn’t I see this coming? The Washington Supreme Court overturned the conviction of Odies Walker for murder and other crimes in the slaying and robbery of an armored car guard because the  prosecutor’s PowerPoint presentation during his  closing argument constituted “flagrant, pervasive, and prejudicial”  prosecutoral misconduct. While lawyers “may use multimedia resources in closing arguments to summarize and highlight relevant evidence,” the court ruled, “advocacy has its limits.”

The  prosecutor presented a whopping 250 PowerPoint slides to the jury during the summation, including 100 with the caption “defendant Walker guilty of premeditated murder.” The slide above with the caption, “Money is more important than human life,” was typical of the problem assailed by the justices: it was never alleged that Walker said this, or even thought it. Continue reading →

A Rare Ethics Hero-Ethics Dunce: Maine Attorney General Janet Mills

/ Jack Marshall / 1 Comment
I looked everywhere to find a picture of a combination Hero-Dunce. This was the best I could locate: the Maine Atty. Gen.

I looked everywhere to find a picture of a combination Hero-Dunce. This was the best I could locate: the Maine Atty. Gen.

If one’s only point of reference were Eric Holder, one might get the impression that the job of an attorney general is to use the influence and power of the office to pursue the executive’s political and policy objectives. That is not what an attorney general is supposed to do, however, because the top lawyer of a city, a state or the U.S. is pledged to represent all the people, not just those who patronize a particular party, and the top lawyer’s client is not the executive, but the entire government entity. If that entity becomes corrupt, then the client becomes the public that is being betrayed.

Maine’s Attorney General Janet Mills illustrated how the job should be done and can be, if the lawyer holding it is ethical and not merely a serving as a political yes-man. Governor Paul LePage, a Republican, wanted to appeal the federal government’s  denial of his request to remove about 6,000 low-income young adults, 19- and 20-year olds,  from Maine’s Medicaid program. Normally the Attorney General would handle the litigation, but Mills refused, insisting that it was  a case that could not be won, and would waste state resources. Excellent. Continue reading →

Prosecutor Ethics, “What The Hell Were You Thinking?” Dept: Dog-Whistling “Dixie” To The Jury

/ Jack Marshall / 29 Comments
"Wait...WHAT did you just say??"

“Wait…WHAT did you just say??”

Canyon County Deputy Prosecutor Erica Kallin wanted to make the point that the defense attorney for the African American defendant, James D. Kirk, was trying to lead the jury to ignore the evidence that pointed to his guilt in his trial for lewd conduct with a 17-year-old girl and sexual battery of a 13-year-old girl—making them, in effect,”look away” from the truth. How could she make that argument in a vivid way? Clarence Darrow used to use poems in his famous closing arguments; was there a memorable poem that used the phrase, “look away”?

“Eureka!” Erica thought. She found it! So she said to jury deliberating on the case:

“‘Oh I wish I was in the land of cotton. Good times not forgotten. Look away. Look away. Look away,’ And isn’t that really what you’ve kind of been asked to do? Look away from the two eyewitnesses. Look away from the two victims. Look away from the nurse and her medical opinion. Look away. Look away.”

The jury convicted Kirk, on both counts; the evidence against him was indeed strong. He was sentenced to 20 years in prison. Continue reading →

Look! There Is Hope! Sometimes The System Actually Works!

/ Jack Marshall / 44 Comments

hallelujah

The 8th Circuit Court of Appeals rejected the absurdly lenient prison sentence given to an Iowa police officer who brutally beat a man without cause, then filed a false police report accusing his victim of attacking him. Mersed Dautovic had been sentenced to just 20 months for the attack after a four-day trial in which a Des Moines jury found him guilty of using excessive force and obstructing justice.

Though the sentencing guidelines called for a range of 135 to 168 months, the trial judge sentenced sentenced Dautovic to only 20 months in prison.
A three-judge panel on the 8th Circuit found this to be a “substantively unreasonable” punishment for Dautovic’s “egregious” conduct, which included savagely beating an innocent man, causing his victim serious and permanent bodily injury, then writing a false police report that caused the beaten man and his girl friend to have criminal charges filed against them,  and offering perjured testimony against them at their trial.

“When the totality of the circumstances is considered, a variance from the guidelines range of 135 to 168 months’ imprisonment to a 20-month sentence is unreasonably lenient,” Judge Roger Wollman wrote for the court in his 14-page opinion.

Ya think?

Well what do you know…justice was done within the system!

In a case involving police misconduct!

When the cop was white,

And his victims were black!

And there were no demonstrations, riots, or looting involved!I guess that’s why you didn’t see this in the news.

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Source: Courthouse News Service.