conflicts of interest

Ethics Pre-Daylight Losing Time Fallback, 11/6/202: So?…Go!…Oops! And More

/ Jack Marshall / 26 Comments

Fall back

At this point in U.S. history, there is no justification whatsoever for not having daylight savings time year-round. The failure of Congress to kill Ben Franklin’s anachronistic brainstorm is pure cowardice and incompetence.

1. So? The NRA Foundation has twice paid attorney David Kopel, a Second Amendment activist, to write pro-gun rights amicus briefs in Supreme Court cases, according to a hacked document released last week. Since 2019, Kopel has submitted two briefs backing an NRA affiliate in cases before the court, including one involving New York’s ban on carrying licensed guns in public. The briefs did not disclose the source of funding, which is being condemned as unethical by the news media and the usual NRA bashers. “Attorneys who author these briefs must disclose whether they’ve taken money from either side to deliver a filing,” one source says.

Well, first of all, an amicus brief succeeds or fails based on its arguments, and who writes it or funds it should be irrelevant. This would be, at worst, a technical violation. However, the applicable rule in the SCOTUS amicus brief memo does not support the description above. “Rule 37.6 Disclosures” states,

“The first footnote on the first page of text of an amicus brief must include certain disclosures concerning contributions to the brief….It should indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief. It should also identify every person other than the amicus, its members or counsel, who made such a monetary contribution; the Clerk’s Office views it as better practice to state explicitly that no such contributions were made if this is in fact true.”

This is astoundingly sloppy drafting, especially for the Supreme Court. “Must” and “should” are terms of art. “Must,” like “shall,” means some action is mandatory; “should” means that something is best practice, but not absolutely required. When two “shoulds” follow a “must,” it is impossible to determine what’s mandatory and what isn’t.

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Ethics Dunce: U.S. Attorney General Merrick Garland

/ Jack Marshall / 14 Comments

This video, from Garland’s testimony before the House Judiciary Committee, tells you everything you need to know, but I have a bit to add…

Observations:

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Now THIS Is The Appearance Of Impropriety…

/ Jack Marshall / 17 Comments

impropriety

The big legal ethics story of the day is a Wall Street Journal report showing that 131 federal judges, appointed by nearly every President from Lyndon Johnson to Donald Trump, have violated federal law by failing to recuse themselves in cases where either they or family members held a financial interest in one of the parties, meaning that the judge’s decision could have resulted in a direct or indirect benefit. This is, of course, a conflict of interest. Even if the judge was as trustworthy as a saint and would never dream of allowing such a conflict to interfere with his or her judgment, allowing these cases to appear before them violates the judicial ethics canon requiring judges to avoid even the appearance of impropriety.

The Wall Street Journal report found that the judges failed to recuse themselves from 685 court cases since 2010. About two-thirds of all federal district judges had holdings of individual stocks, about one of every five of these heard at least one case involving those stocks without withdrawing. When these judges participated in such cases, about two-thirds of their rulings on motions favored the party that their or their family’s financial interests would benefit from prevailing.

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If This Post Seems Like Déjà Vu, There’s A Good Reason: The Texas Law Clerk-Prosecutor [Update]

/ Jack Marshall / 8 Comments

Justice scales bad

UPDATE: “I don’t understand how this could happen. Since it obviously can, I wonder how many other outrageous conflicts of interest are rotting the justice system while nobody is paying attention.”

That’s how I started this post when I wrote it yesterday. Here’s how I ended this post, from May 17, just four months ago: “…the fact that something like this could happen at all, and for so many years, should have ethics alarms sounding throughout the justice system, and not only in Texas.”

This is because the two posts are about exactly the same episode. The similarities didn’t ring a bell with me at all yesterday. A new appellate court opinion related to the same outrageous Texas conflict of interest breach came down this month, so I treated the whole episode as new. It took commenter Rich in CT’s note to alert me. (Thanks Rich.) So here are my thoughts while banging my head on my desk:

  • I apologize. It’s not as if there aren’t really new and horrible ethics stories to consider, especially in the law and the justice system. It’s OK if I waste my time, but its inexcusable to waste yours.
  • I like the first post better.
  • Silver lining: at least the posts don’t contradict each other.
  • The association of legal ethicists I belong to scooped the ABA on this one, discussing the prosecutor’s conduct long before the legal press caught up to it. One more reason to renew my membership.
  • I could write that this scandal is so outrageous that it is worthy of two posts, and maybe more. It is, but that doesn’t excuse the fact that I’m an idiot.
  • I think this has happened to me once before. But what do I know?

Once again, I’m sorry.

***

The Texas Court of Criminal Appeals has overturned the 2003 conviction and death sentence of Clinton Lee Young in a Sept. 22 opinion. Why? Oh, just one of those technicalities: on of the prosecutors in the case was moonlighting as a a clerk for the judge in the trial the trial and who considered the the convicted man’s habeas application. That’s all.

WHAT?????

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The Category Is “Jeopardy Ethics”! And The Question Is: “Who Is Mike Richards?”

/ Jack Marshall / 14 Comments

Mike Richards

If you need another bit of evidence about how social media wastes our time—and why would you?—consider the uproar over the search for a replacement for Alex Trebek. The original “Jeopardy!” host, Art Fleming, was popular too, and he hung around for 11 years. That was sufficiently long to be briefly legendary; the “Jeopardy!” announcer, Don Pardo, was familiar enough that Saturday Night Live! used him and his unique voice as a running joke for decades. But when Fleming retired, there was no controversy over his replacement, because, seriously, who cares who reads the questions and answers in a quiz show, unless they have a speech impediment or sexually harass the contestants, like Richard Dawson on “Family Feud”? But in the Age of The Great Stupid, everything is a big deal.

After months of celebrity tryouts, kind of like Presidential primary debates, “Jeopardy!” has finally chosen two replacements for the late Alex Trebek. The actress formerly known as “Blossom” and later as Sheldon’s girlfriend on “Big Bang Theory,” Mayim Bialik, will host the prime time version and its spinoffs. Can’t wait for those spin-offs! Bialik is legitimately smart and knowledgeable, and not just compared to other performers: she has a PhD in neuroscience from UCLA. She also, like most successful TV actors, projects a likable personality. And, of course, she’s a woman. I assumed a black host would be found, but Steve Harvey’s already taken.

The kerfuffle is over Trebek’s replacement for the main, daily syndicated edition, which has been around since 1984. The show’s current executive producer, Mike Richards got the job. Richards was not one of the more popular auditioners, but he had one thing the rest didn’t have: the power to choose who got hired. He thought, and thought, and chose…himself! This suggests that the process was rigged.

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A Show Of Hands, Please! Who Is Surprised To Learn That “Time’s Up,” Like #MeToo, Is Partisan, Hypocritical, And Tainted By Double Standards?

/ Jack Marshall / 2 Comments

I assume only those so gullible that they are constantly falling for Ponzi schemes and hanging on Chris Cuomo’s every word have their hands up.

The #MeToo brigade that screamed that Justice Bret Kavanaugh was a “rapist” based on the weirdly vague “discovered memories” of an alleged victim who knew the SCOTUS nominee before he could vote went on to overwhelmingly vote for a Presidential candidate whose serial sexual harassment habit was a matter of photographic record. Now we learn that the leadership of Time’s Up, an organization formed in the wake of the Harvey Weinstein revelations (well, revelations in the sense that all of the Democrats and Hollywood stars who had willfully ignored them finally had to give in) that has the started mission of fighting sexual harassment and sexual assault—at least when Democrats aren’t involved, were involved in Gov. Andrew Cuomo’s efforts to stifle the women accusing him of — sexual harassment and sexual assault!

The report issued last week by the New York Attorney General’s office found overwhelming evidence that Cuomo of sexually harassed eleven women. The report, also revealed that Roberta Kaplan, the chairwoman of the anti-harassment group as well as a co-founder, reviewed a draft of an op-ed letter that was designed to discredit Lindsay Boylan, the first woman to accuse Cuomo. The group’s CEO, Tina Tchen, also advised Cuomo and his staff, according to the report. Nice.

Today a group of victims of harassment t and sexual assault published a letter on Medium accusing that Time’s Up of betraying “the very people it was supposed to champion. The board continues to fail to heed the outcry from survivors. TIME’S UP is failing all survivors.”

Now Kaplan has resigned as chair, writing that as a lawyer, she could not answer questions about her involvement with Cuomo. “I therefore have reluctantly come to the conclusion that an active law practice is no longer compatible with serving on the Board at Time’s Up at this time and I hereby resign,” she wrote. So far, Tchen is still with the group.

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Woke Derangement Symdrome-Infected Conservatives Board An Ethics Train Wreck To…Hungary??

/ Jack Marshall / 17 Comments

This was late crossing my consciousness, perhaps because I do not trust Tucker Carlson and will not watch his allegedly sincere rants because we know, or should, that he is more interested in ratings than principles. The idea of prominent conservatives suddenly deciding the the U.S. can learn from Hungary, of all places, is ridiculous on its face, but I did not realize the extent to which the current wokeness epidemic has driven many conservatives and Republicans into the mouth of madness.

Carlson has been broadcasting nightly from Budapest, as he has interviewed and celebrated Hungary’s corrupt and authoritarian leader, Viktor Orban.There is no excuse for this, but Carlson thinks Fox News viewers will approve of his: Orban has defied the European Union on the issue of accepting illegal immigrants and refugees, and has installed harsh measures against trans individuals and LGBTQ people generally. He also has taken action to intimidate and control the news media. In embracing such a leader, Carlson (and others—I’ll get to them shortly) is realizing the worst stereotypes of conservative Americans.

Orban is a central-casting anti-democracy thug. Last year, he pushed the Hungarian parliament, which his party controls, to pass laws creating a state of emergency without a time limit, granting him the ability to rule by decree, suspending elections to fill positions that have become conveniently vacant between regular elections, and permitting prison sentences for spreading “fake news.” But his real appeal to Carlson and the Cro Magnon subspecies of conservatives is his persecution of gays and trans individuals. In 2020, Orbán’s government ended legal recognition of transgendered people, and his party has proposed legislation to ban “LGBtQ positive content” in movies, books or advertising.

Gee, what a great guy! Do conservatives comprehend the cognitive dissonance scale at all? This autocratic creep is so underwater on the scale, I’d say a minus hundred or more…

Cognitive Dissonance-SMALL

…that he would drag the Puppies Are Adorable Party below zero if it endorsed him. But on their own currently warped scale, conservatives’ terror over losing such culture war battles as the same-sex marriage debate and illegal immigration restrictions has wokeness so low on the their scale that an aspiring dictator who opposes gays and illegals appears to be in positive territory.

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Jesus’s Wife: A Depressing Example Of Why American Institutions Are Not Trusted And Don’t Deserve To Be

/ Jack Marshall / 19 Comments

Who do you trust 3

Most people younger than me don’t know (or care) that before he was the king of late night TV on “The Tonight Show,” Johnny Carson was the young, engaging host of a pseudo-quiz show called “Who Do You Trust?” I think of that show’s title when, as is increasingly the case, I encounter stories like this one, which is described in excruciating detail in a plaintive article in the Chronicle of Hight Education.. The main facts are these:

—A 2014 Harvard Theological Review article by Harvard Divinity School professor Karen L. King purported to have uncovered an ancient papyrus fragment in which Jesus refers to “my wife.” This, coming after the sensational best-selling novel “The Da Vinci Code” by Dan Brown and its subsequent film version starring Tom Hanks, both of which were based on a fanciful conspiracy theory regarding Mary Magdalene’s alleged relationship with Jesus Christ, understandably caused quite a stir in academia, theological circles, and the popular press.

––King’s article was deemed unlikely to the point of absurdity by many scholars from the moment it was published. “Almost everything we know,” one expert wrote, “about the nature of historical evidence points to forgery.”

—King had failed to take basic steps to vet the manuscript, which she’d provocatively named “The Gospel of Jesus’s Wife.” Worse, two of the journal’s three peer reviewers had decided the papyrus was a fake. Only one had not: an acclaimed papyrologist named Roger Bagnall. Bagnall, however, had helped King draft the very paper the journal asked him to review. This is called a conflict of interest, indeed a screaming conflict of interest. Not only had King identified him in the paper as her primary adviser, but Bagnall had been filmed declaring the papyrus’s authenticity for a forthcoming Smithsonian Channel documentary.

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A Scandal That Compels The Question: If This Can Happen, What Other Ethics Rot Lurks In The Justice System?

/ Jack Marshall / 3 Comments

Texas attorney Weldon Ralph Petty Jr was a busy guy at the Midland County courthouse. By day he appeared before judges as an assistant district attorney. By night, he worked as a law clerk for some of the same judges, sometimes advising them regarding the criminal cases he was prosecuting. This went on for more than a decade.

You don’t have to be a legal ethics whiz to figure out that such conduct isn’t ethical. Prosecutors are barred from privately communicating with judges about cases or matters even indirectly related to their cases. Judges and their clerks are forbidden from disclosing the discussions and in chambers considerations regarding cases to prosecutors or defense attorneys.

Thus Petty, 78, was flagrantly violating ethics rules by simultaneously acting as a prosecutor and a paid adviser to supposedly impartial judges, who were also breaching judicial ethics to a spectacular degree by allowing him to do so. A February story published by USA Today first reported that Petty was paid by judges as a clerk in at least 350 cases from 2001 until his retirement as an assistant district attorney in mid-2019. Seventy-three defendants, maybe more, that Petty prosecuted are in prison. A court opinion issued April 28 calls for overturning Midland County’s only death penalty case due to Petty’s prosecutorial misconduct and the judge’s failure to recuse himself, so Clinton Lee Young, who has been on death row since Petty prosecuted him in 2003, will get a new trial.

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Unethical Quote Of The Month: CNN

/ Jack Marshall / 4 Comments

“We generally do not get involved in the medical decisions of our employees. However, it is not surprising that in the earliest days of a once-in-a-century global pandemic, when Chris was showing symptoms and was concerned about possible spread, he turned to anyone he could for advice and assistance, as any human being would.”

—-CNN spokesman Matt Dornic, in a jaw-dropping defense of anchor Chris Cuomo after it was revealed that he used  his brother’s influence to “cut in line” to get Wuhan virus testing when it was unavailable to the general public.

Earlier this week, the The Albany-Times Union and The Washington Post reported yet another scandal involving New York’s Francis Ford Coppola-redolant governor, Andrew Cuomo. As if the deadly NY nursing home cover-up and the expanding sexual harassment allegations were not more than enough, we learned that…

“High-level members of the state Department of Health were directed last year by Gov. Andrew M. Cuomo and Health Commissioner Dr. Howard Zucker to conduct prioritized coronavirus testing on the governor’s relatives as well as influential people with ties to the administration. Members of Cuomo’s family including his brother, his mother and at least one of his sisters were also tested by top health department officials — some several times.”

The governor, in short, manipulated state resources to ensure that his brother, CNN’s Chris Cuomo, received Wuhan virus testing when tests were scarce and generally unavailable. “The CNN anchor was swabbed by a top New York Department of Health doctor, who visited his Hamptons home to collect samples from him and his family,” WaPo reported. The test specimens from Andrew and other Cuomo family members were then rushed, in some cases driven by state police troopers to a state public health lab in Albany, where they were processed immediately. Some employees in the state health laboratory worked overtime late into the night to process the results for Cuomo family members whose roles in society, while hardly essential to New York or the public, were favored by the Governor of New York.

In particular, the CNN anchor got specialized medical attention while “media reports were full of accounts from New Yorkers desperate to get tested — including some with symptoms and recent travel history who were turned away because of scarcity.”

Glenn Greenwald neatly sums up the import of this beyond the obvious fact that this is another example of elected officials using their power and influence for personal gain:

For more than a year now, CNN’s promotion of “interviews” conducted by Chris Cuomo of his own brother — in which the CNN host repeatedly heaped lavish praise on Gov. Cuomo and even hyped him as a presidential contender while the Governor was corruptly and possibly criminally covering up COVID deaths — was one of the most glaring breaches of journalistic ethics imaginable…it aggressively deceived CNN’s audience. That they knew it was corrupt was evidenced by the CNN host’s recent announcement that he would not cover his brother’s recent scandals: what conceivable framework makes it journalistically permissible for a news host to shower his own brother with praise, but then not cover his scandals?

But now Chris Cuomo is directly involved in a serious abuse of power scandal by his brother: in fact, he’s the prime beneficiary of that scandal. He sought special medical favors from his brother, depriving other sick people more in need of it than he, by exploiting the fact that his brother is Governor and thus rules the state. That’s a scandal by any measure — one involving not only the Governor but also the CNN host.

What’s even more remarkable is that on May 6 — just weeks after Gov. Cuomo provided special COVID testing and treatment for him — Chris Cuomo “interviewed” his brother and began the interviewing by noting that New York State lacks the resources to provide COVID testing to the public at large. So not only did they conceal that they had both just used state resources to get Chris that scarce testing, but they both acknowledged that there was a resource shortage to serve the general public, even as Gov. Cuomo was lavishing those resources on his own family.

Now read CNN’s response again. Continue reading →