criminal defense lawyers

“Immoral And Ineffective”

/ Jack Marshall / 31 Comments

Hmmm. I have now, in a single day, heard two Congressional Democrats, in the course of discussing the so-called government shut down, describe the Trump border wall as “immoral and ineffective.” Does this mean that the phrase is an official, focus group tested Democratic talking point now, issued to the troops to be relentlessly repeated over and over again to end debates rather than illuminate them? I assume so, and thus it joins “comprehensive immigration reform,” “sensible gun laws,” and others. If I am right, it is a remarkably dishonest catch phrase. It’s also internally hypocritical.

Simply put, if the wall is ineffective, why is it immoral? And if the wall is immoral, why is being ineffective an indictment of it?

Arguing in the alternative like this is a red flag that signals that the advocate just wants to defeat the proposition, and doesn’t care how he or she does it.  The device originated in the legal profession, as a strategy to advance several competing and often mutually exclusive arguments with the goal of showing that regardless of interpretation there is no viable conclusion other than the advocate’s. Most often, the trick is used in criminal law: My client didn’t know the victim, and if he did, he was too far away that night to kill him, and even if he was the last one to see the victim alive, the evidence against him is circumstantial. In criminal law, the approach is justifiable, for the accused must be convicted beyond a reasonable doubt, and any doubt will do. The criminal defense lawyer isn’t seeking justice, or the best result for the community, just the best result for his client, as his (or her) clients defines it. It’s a better device to use in court briefs to other lawyers and judges than to a jury, who are likely to think, “Wait, does this lawyer care what the truth is?” The answer to that question is, of course, “no,” as long as the end result serves the interests of the lawyer’s client. If the client is Jack the Ripper, and the lawyer  arguing in the alternative allows him to escape conviction to kill again, the lawyer did the job required by his or her profession. The consequences of freeing the client literally is not the lawyer’s concern: if it is, then he or she is in the wrong profession. Continue reading →

Unethical (And Stupid) Quote Of The Month: Harvey Weinstein Defense Attorney Benjamin Brafman

/ Jack Marshall / 7 Comments

“Mr. Weinstein did not invent the casting couch in Hollywood”

—–Benjamin Brafman, Harvey Weinstein’s defense counsel, as Weinstein surrendered to authorities yesterday in Manhattan.

The whole quote, as Brafman addressed reporters:  “My job is not to defend behavior. My job is to defend something that is criminal behavior. Mr. Weinstein did not invent the casting couch in Hollywood. To the extent that there’s bad behavior in that industry, that is not what this is about. Bad behavior is not on trial in this case.”

Good luck with this boob, Harvey. To begin with, his job isn’t to defend any kind of behavior; his job is to defend his client.  The way the English language works is that “defending” criminal behavior means arguing that criminal behavior is just fine, thank you. Defending against charges of criminal behavior, in contrast, means that a lawyer is making a case that there was none. If a lawyer can’t speak with more care and precision than this, when addressing reporters he shouldn’t say anything at all.. He essentially just admitted that his client committed criminal behavior and bad behavior, while also leaving doubt as to whether he understood that criminal behavior was also bad.

That’s just the stupid and incompetent part of the statement. The stupid and unethical part, the Unethical Quote of the Month, is an invitation to play, “Name that rationalization!” What difference does it make whether or not Harvey invented the practice of using power over young women’s careers and aspiration to extort them into being their sex toys? Have you ever heard of a defense attorney arguing to jury, “Come on! My client didn’t invent serial killing! What’s everyone so upset about?”  This is a blatant “Everybody does it” excuse, and an especially offensive one. Weinstein’s lawyer just made his first impression on te public—you never get a second chance to make one, you know—and he presented himself as a man who shrugs off coerced sexual submissiveness in the workplace as just one of those quirky Tinseltown traditions. Continue reading →

Morning Ethics Warm-Up, 11/12/2017: Prisoners Behaving Badly, The Harvey Weinstein Ethics Train Wreck Picks Up The Brother Of “The Girl Next Door,” And The Attempted Coup Continues

/ Jack Marshall / 9 Comments

Good Morning!

On the way to Boston soon for an in-and-out ethics seminar for young Massachusetts lawyers…

1 Why is the New York Times acting as if the 2016 campaign is still going on? Today’s Sunday Times includes a long scold from the Times editors urging the President to “please read the Constitution.” Then it reaches back all the way to 2015 for TrumpTweets that proposed or mused about Constitutionally impossible policy ideas. How does the Times know that the President’s Constitutional acumen hasn’t been enhanced since 2015? It doesn’t, of course. The criticism would be legitimate during a campaign, but a year after an election, it tells us only this: The New York Times is still in the mode it announced during the campaign. The existence of Donald Trump, in its view, justifies the suspension of journalism’s core principles. In the view of many of the Times’ voices on its op-ed page, his existence also justifies the suspension of the Constitution that the paper piously insists the President read. The Times editors have not told those who have claimed in its pages and from the floor of Congress that President Trump should be impeached based on no “high crimes and misdemaeanors” to read the Constitution. It didn’t tell Hillary Clinton to “read the constitution” when she advocated “the Australian approach” to gun control, or grandstanding Democrats in the House to ‘read the Constitution” when they behaved as if the right  of Due Process didn’t exist, so citizens arbitrarily placed on a no-fly list by the FBI could nonetheless be denied the right to own a gun. It didn’t tell “the resistance” to “read the Constitution” when it attempted to distort the operation of the Electoral College to undo the President’s election.

“He has showed disdain for the separation of powers by repeatedly attacking the federal judiciary and individual judges who have ruled against him.” the Times sniffs, but it did not tell Barack Obama to “read the Constitution” when he attacked the U.S. Supreme Court in a State of the Union address. Then the Times goes off into the hyper-partisan stratosphere, suggesting that its editors also need to “read the Constitution”:

He has abused the pardon power by granting his first, and so far only, pardon to a former sheriff who was found in contempt of a federal court for defying an order. And he has failed to take care that the laws are faithfully executed, whether by trying to sabotage the Affordable Care Act, leaving hundreds of critical executive branch positions vacant or threatening to prosecute his former political opponent.

The Constitution places no limits whatsoever on the pardon power; it is absolute, beyond appeal, and can’t be abused as a matter of Constitutional law. The Times’s definition of the duty to faithfully execute the laws is incomprehensible, since it did not object to Barack Obama circumventing crystal clear laws against illegal immigration by ordering them not to be enforced, or when the Obama administration refused to defend the Defense of Marriage Act while it was still a valid law signed by the previous Democratic President. The Constitution does not demand that the Federal government be a bloated, deficit-making bureaucracy; the President, not the Times, gets to decide what positions are “critical” in the Executive Branch. That’s in the Constitution. As for “threatening to prosecute his former political opponent.,” the President’s statements regarding Hillary Clinton can be and should be taken as questioning whether the Justice Department under Barack Obama was placing its thumb on the sales of justice for political purposes.

It is increasingly beyond argument that the mainstream news media, led by the Times, is trying to abuse its Constitutionally enshrined immunity from responsibility to engineer a virtual or actual coup. That is dangerous and unforgivable, as well as directly contrary to how the Founders wanted our democracy to operate.

2. I checked the news early this morning to learn the identity of the latest celebrity to have a finger pointed his way as a chorus shouts “HARASSER!” To my surprise and alarm, I discovered that the Harvey Weinstein Ethics Train Wreck had entered my world: jet-set hotelier André Balazs was accused by actor Jason Bateman’s wife of groping her crotch in 2014. André Balazs grew up across the street from my childhood home in Arlington, Massachusetts. His sister, Marianne, was a good friend and classmate all the way through high school. I knew André as Marianne’s annoying little brother.

It appears that the idea in Hollywood now is to accuse someone else before you or your significant other gets accused. This is because sexual harassment and misconduct has been an accepted part of power-player culture in Hollywood forever, even while the Left’s component of that culture proclaimed that the Right was wielding a “war on women.” The country should not forget how dishonest and hypocritical this was.

I never liked that kid…. Continue reading →

The Michael Slager Trial: When The Ethical Course Is To Not Exercise a Right

/ Jack Marshall / 36 Comments

shooting_of_walter_scott

Michael Slager is the white North Charleston police officer who stopped African American Walter Scott for a taillight violation on April 4, 2015, and in the ensuing events, ended up fatally shooting Scott as he fled the scene, in the back, as recorded on a cell phone video. Of all the many police-involved shootings, this is the least equivocal. Slager is guilty of murder of one kind or another: in South Carolina, there is only one kind, and  mitigating circumstances are reflected in the sentence. He could receive life in prison, or much less time.

But every criminal defendant has the right to be tried by a jury of his peers before the law finds him guilty, and Slager is taking full advantage of the right. In doing so, he is forgoing his last clear chance at redemption. The former officer—he has already been fired for the episode and not just put on paid leave, as is usually the case—is understandably trying to avoid a conviction and jail time, even though, should he be acquitted by some miracle or act of mass hypnosis, it would be certain to provoke even more anger and distrust in the black community, and, I would hope, among non-African Americans as well. A justice system that finds, no matter how it reaches such a conclusion, that an officer who shoots a fleeing man dead like Slager did is not guilty needs to be blown up and seeded with salt. When Slager’s first lawyer saw the video, he quit.

Do you think an acquittal is impossible? Don’t. All that is needed is a jury full of people who “think,” and I use the word generously, like the signers of this petition. I’m pretty sure that there are more than twelve of them available. 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 →

A Plague Of Misleading Headlines

/ Jack Marshall / 11 Comments

Fake headline

The mad quest for clicks appears to be leading websites that should know better to sink to misleading or outright dishonest headlines on the web. For someone like me, who has to scan these looking for possible ethics issues, it is an increasingly annoying phenomenon. Readers need to speak up. The practice is unethical, and moreover, suggests that the source itself isn’t trustworthy.

Here are three current examples;

1. The Daily Beast: “Idiocracy’ Director Mike Judge: Fox Killed Our Anti-Trump Camacho Ads”

Boy, isn’t it just like that conservative, Trump-promoting Faux News to help The Donald by using its power, influence, lawyers, something to stop the makers of “Idiocracy,” that comic classic, from being used to save the country from American Hitler?

That’s sure how the Daily Beast wanted its largely Democratic readership to react to its headline over the story about a fizzled effort to use the the film’s character  of ex-porn star future U.S. President Dwayne Elizondo Mountain Drew Herbert Camacho, played by Terry Crews, in a series of comic spots ridiculing Trump’s candidacy. The story, however, never quotes Judge as saying Fox—that would be the movie side of Twentieth Century Fox, not Fox News, which had no say in the matter: the company produced the film and owns the right to it and all of its characters—killed the project.  All Judge says is that the idea of doing a series of such ads didn’t come to fruition, for a whole list of reasons which might have included Fox’s distaste for the project.. Of  Fox, he says this..

“I think also Fox… yeah, they… even though they’ve probably forgotten they still own it…”

The writer then suggests that company owner Rupert Murdoch might not like the idea, and thus prompted, Judge replies,

“Yeah. That’s the other thing. I think there was a roadblock there, too…I just heard that [the proposed ads] were put on the shelf, so it looks like they’re not going to happen.”

Based on this, the author, typical Daily Beast hack Marlow Stern, writes, “It looks like Fox refused—and the ads are now dead.” Stern never says that Fox refused; it is the “reporter” who says it. Meanwhile, when the Daily Beast writes about “Fox,” it is referring to Fox News 99.9% of the time, and knows that’s what its readers will think when they read “Fox.”

The headline is intentionally misleading, and a lie.

(Incidentally, the movie is a great concept that under-delivers on its premise and potential, and should be a lot funnier than it is) Continue reading →

Now THIS Was Zealous Representation! The Incredible, Unethical, Zealous, Crooked And Courageous Bill Fallon

/ Jack Marshall / 15 Comments

Fallon

I’m giving an ethics seminar for a group of government lawyers this morning. I think I’ll tell them about Bill Fallon.

Bill Fallon (1886-1927) was a very successful New York criminal defense attorney, and a contemporary of Clarence Darrow. He was called “The Great Mouthpiece,” because he represented some of New York’s leading pimps, narcotics dealers, embezzlers, swindlers and gamblers.  One famous client was Arnold Roth, who was the architect of the 1919 Black Sox scandal, bribing eight Chicago White Sox stars to throw the World Series. Another was Nicky Arnstein, the gambler husband of Fanny Brice. That was Omar Shariff playing Nicky in “Funny Girl.”

Fallon often bribed his juries, and got away with it: the one time he was caught and indicted, a jury found him non guilty. He probably bribed that jury, too. Clarence Darrow was proud of the fact that he represented over a hundred men and women facing the death penalty and none were ever executed. Fallon could top that: he represented over 120 homicide defendants, all of them guilty as hell, and not one was convicted.

Dashiell Hammett referred to Fallon in his novel, “Red Harvest,”, when he wrote,

He’s the guy that the joke was wrote about: ‘Is he a criminal lawyer?’ “Yes, very.'”

Continue reading →

Essential Ethics Points Regarding Casey Anthony’s Investigator’s “She Did It!” Claim

/ Jack Marshall / 9 Comments

Anthony and LawyerCourtExcerpt

News Flash:

Private investigator Dominic Casey submitted a court affidavit in  Casey Anthony’s bankruptcy case (he wants to get paid), that stated that Casey’s attorney Jose Baez (above, left) “ told me that Casey (above, right) had murdered Caylee and dumped the body somewhere. He also alleges that Baez had sexual relations with Anthony.

Here’s what you need to know about the ethics issues involved:

1. Most important of all: USA Today’s website headlined the story, P.I. says Casey Anthony lawyer acted unethically. I’d guess 95% or more of readers assume that what was unethical was Baez defending Anthony when she was guilty. Maybe USA Today even thinks that. That is pure, inexcusable ignorance. All criminal defendants have a Constitutional right to a zealous defense, and the defense lawyer’s duty is the same whether his client is guilty or not, Jack the Ripper or a jay-walker. The duty is to make the State prove its case with admissible evidence beyond a reasonable doubt. Almost everyone who has followed the case believes that Anthony is guilty of facilitating the murder of her daughter Kaylee, but the evidence was ambiguous and circumstantial, and the prosecution didn’t prove its case.

Having sex with a client is unethical, specifically under the rules of most states, and arguably under the rules of all states under general ethics and professionalism principles. Continue reading →

“Baretta,” The Ethics of Criminal Justice, And Keeping The Sentence From The Jury

/ Jack Marshall / 17 Comments
Just stay in the box, everybody...

Just stay in the box, everybody…

Florida criminal defense lawyer has made a thorough and passionate argument on his blog for letting a jury know what the sentence is likely to be if it convicts the defendant in a criminal trial. He writes in part:

Florida juries are not permitted to know the most basic truth of a case—the potential sentence. Kind of crazy, right? Citizens are not allowed to know the sentence that will result from their verdict out of fear that such information would sway the jury’s conscience toward not guilty (God forbid a jury with a conscience!). Such fears say a lot about how harsh our criminal justice system has become. Continue reading →

Slager’s Lawyer Unethically Throws Him Under The Bus (Not That He Doesn’t Belong There)

/ Jack Marshall / 13 Comments
Professional Tip: Lawyers, it's unethical to do this to your clients!

Professional Tip: Lawyers, it’s unethical to do this to your clients!

When a lawyer believes that representing a client is something that he or she cannot do effectively, either because of a deep personal bias against the client, another conflict of interest, a reasonable belief that the client is untrustworthy or unmanageable, or some other good reason, his duty is to withdraw from the representation. Believing or even knowing that the client is guilty is not a good reason. Guilty clients have rights, the system demands a competent defense, and sometimes—rarely, but it happens—a lawyer can be surprised to find out that his “guilty” client isn’t guilty after all.

Withdrawal from a representation is appropriate and allowed in the circumstances defined by ABA Rule 1.16: Continue reading →