Here’s A Solution To Five Guys’ Legal Problem: Stop Deceiving Customers

Hot Dog

Darren Smith, one of the less-circumspect guest-bloggers that law professor Jonathan Turley inexplicably entrusts his blog to on weekends, wrote a post critical of Washington State for a law criminalizing the advertising of food as “Kosher-Style” when it is not, in fact, kosher.

Maybe he’s just a big fan of the offending restaurant chain he highlights, Five Guys, and is thinking with his stomach. Otherwise, he has no excuse for essentially giving a pass to intentional misrepresentation and fraudulent advertising as “no big deal.” Smith writes:

“Your author visited a Five Guys restaurant in Washington and did note that the “Kosher Style” hot dogs are cooked on the same grill as the beef, which would be a mixing of kosher and non-kosher foods in the making of the end product….The company has made an effort, on the company website at least, to note that these hot dogs are in the style of kosher and not actually kosher, but this might not be enough in Washington….There are numerous examples of products in the U.S. economy that use the word “Style” to declare that the food product is not actually as pure as might be expected of a product marketed without the word “Style”. Some examples might be “Artisan style breads” or “Honey style sauce” and do not necessarily break Washington’s, other states’ or Federal consumer protection laws. Yet Washington’s legislature decided that “style” was not enough with regard to differentiating kosher foods with non-kosher. It is either Pure or Not-Pure, and criminalized violations….It is certainly difficult to operate a business in numerous states having often greatly varied laws and administrative codes and when serving something as ordinary as a hot dog might possibly constitute a crime; it can make any business worry. Five Guys likely just wants to provide a menu its customers enjoy.”

Elsewhere in the article, Smith acknowledges that for certain religions eating non-kosher food can be “quite significant,” yet he pooh-poohs the effort of Washington legislators to stop establishments like Five Guys from using deceitful language to suggest that food is kosher when it isn’t. Disclaimers on websites and even menus come under the category of “fine print,” like “results not typical” in diet aid ads. Here’s a useful ethics tip: if you have to explain why your misleading description isn’t really misleading,  a) it’s misleading, and b) you know it. All Five Guys has to do to take itself out of legal peril is to stop misleading its customers. Smith, however, thinks the problem is the law. Continue reading

The “Too Handsome To Rape” Defense

Sharper, Mathis, Ted Bundy.

Sharper, Mathis, Ted Bundy.

For whatever reason, there have been a lot of attacks on the legal profession lately—and some from within the legal profession—because of so-called “disgusting” and “frivolous” arguments by lawyers who are zealously representing their clients. These range from outrage over the so-called “affluenza” defense (which, it apparently does no good to point out, was explicitly rejected by the judge in that case), to the law suit against the Glendale, California memorial to women forced into sexual slavery by the Japanese in World War II, to the argument that Red Sox broadcaster Jerry Remy was complicit in his son’s allegedly murdering his girlfriend because Remy hired a lawyer who mounted a vigorous defense in the son’s earlier domestic abuse arrests.

Lawyers are ethically obligated to advance whatever non-frivolous arguments and theories that are most likely to achieve their clients’ objectives, whether it is avoiding prison or rationalizing the crimes of the Japanese army. That is their job and societal function, and it is essential to our avoiding a jack-boot system where any of us could be thrown in jail by popular opinion or government edict. The laws are there to be used by every citizen, even when the citizen’s objectives are unethical, or when the citizen is a cur.

Our rights are all protected well by this principle, and it’s high time we stopped bitching about it.

Undeterred by this, however, yet another defense attorney is being savaged in the news media and blogosphere, as well as by women’s rights advocates, for making an argument in defense of his client that they find offensive. In Georgia, Darriuos Mathis and his legal team are making the argument, among their efforts to show that the evidence against him is not sufficiently conclusive, that Mathis is too attractive--fit, handsome, sexy– to have to resort to kidnapping and raping a 24-year-old woman two years ago, which is what he charged with.

Continue reading

Undercutting the “Nerd Defense”

“A killer? Him? Come on, look at him. He couldn’t hurt a fly!”

More than a year ago, Ethics Alarms discussed the ethics of a current criminal defense tactic employed by lawyers with clients accused of violent crimes, putting them in nerdy glasses:

“It’s not a guarantee, but  the Daily News report says that criminal defense lawyers “swear by the gimmick, believing the right spectacles can make a sinister-looking murder suspect seem like a perfect gentleman.” “Glasses soften their appearance so that they don’t look capable of committing a violent crime,” veteran lawyer Harvey Slovis told the paper.”I’ve tried cases where there’s been a tremendous amount of evidence, but my client wore glasses, dressed well and got acquitted.” Cordero, who was represented by Slovis, wore bifocals throughout his trial, but threw them away the moment he was free.”

I’ve quizzed lawyers about the ethics of this tactic in my CLE classes, and they nearly unanimously agree that the tactic crosses no ethical lines that can be drawn with appropriate precision. I’m not so sure. I think it goes beyond merely giving your axe-murderer a shave and a haircut so he doesn’t look like an axe murderer, and edges into the realm of intentional deception. Apparently some courts may agree. Continue reading

Unethical Quote of the Week, Trayvon Martin Ethics Train Wreck Division: Dr. Boyce Watkins

“Sybrina’s words have opened the door for millions of people to understand when George Zimmerman is let off the hook with either an acquittal or a plea bargain for a lesser charge.”

Syracuse University Professor Boyce Watkins, in a blog post complaining that the comments of Sybrina Fulton, Trayvon Martin’s mother stating that she thought the shooting of her son was “an accident” were devastating to the chances of convicting George Zimmerman of second degree murder.

Unmasked at last!

I must confess, I love this quote and the post that generated it. I love it because a race-baiting scholar who later defenders cannot credibly claim didn’t write what he meant, has confirmed what I have argued in multiple posts, in the course of also validating my assessment that Fulton’s comment was itself unethical, though not for the reasons Dr. Watkins objects to it.

In the rest of his post, Watkins confirms my assessment of Fulton’s irresponsible and despicable willingness to stir up hate toward Zimmerman. Continue reading

Clarifications, Retractions, Excuses and Lies: The Low Art of Pretending You Didn’t Mean What You Said

A figure in the public eye says something that appears sincere but that leads to negative conclusions about the speaker? Well. there are many options:

1. The speaker can stand by his or her words, and take the consequences.

2. The speaker can regret the words, express remorse, apologize, and ask forgiveness.

3. The speaker can accept the criticism and agree that he or she meant what he said, but state that, upon listening to the criticism, state that he or she no longer feels that way, and would not say the same thing today.

4. The speaker can try to say that the original statement wasn’t intended to mean what anyone hearing the words would naturally think they meant, making a plausible claim that the original statement was mis-worded.

5. The speaker can deny that he or she said the words, even, in some cases, though it was on tape.

6. The speaker can say that the words were taken “out of context,” as they sometimes are, as in Shirley Sherrod’s case, when subsequent comments at the same event changed the meaning of the quote, but were edited out.

7. The speaker can say he was joking, as Senator John Kerry tried to do after he suggested that if you don’t study hard and end up ignorant, you’ll be in the military fighting with all the other dummies, or as Professor Charles Ogletree has claimed regarding his statement that a video of President Obama hugging a radical law school professor when he was a student was hidden during the 2008 campaign.

8.The speaker can say that the statement is “no longer operative”, as Newt Gingrich did after a televised interview earlier this year. Continue reading

Trayvon Martin’s Mother Says That The Killing of Her Son Was An Accident. Well, That’s Certainly A Generous and Reasonable Thing For Her To—Wait, WHAT???

Great. Thanks for that statement, Sybrina. Now look what you've done to my head!

You think the Trayvon Martin-George Zimmerman Ethics Train Wreck is almost done? Ha! I would love for you to be right, but the signs are not promising:

  • Yesterday, the special prosecutor ended the suspense and announced that Zimmerman would be charged, putting a sock in the collective mouths of activists who claimed that the case was already closed. That was nice, but it also allowed Al Sharpton to claim that it was the demonstrations, the threats and the public outcry that forced that outcome. This is bad in three ways:

1.) It suggests that the U.S. justice system can be manipulated by mob rule;

2.) It tells the public that any citizen might be arrested, not because law enforcement believes it has a legitimate case, but because his rights have been balanced against other political and popular factors and found to be dispensable; and

3.) He may be right. Angela Corey, who made the decision to charge Zimmerman without a grand jury, strongly denied Sharpton’s point, and we should all hope she was being truthful.

  • But she almost certainly over-charged. Again, with a second degree murder charge, she is saying that there was no self-defense and that Zimmerman shot Trayvon out of spontaneous anger, animus or other cause that does not include any excuse or legally recognized mitigating factor. Here’s hope again: I hope she has sufficient evidence to support this. Otherwise, she has set everyone up for another round of mob fury and even violence, when Zimmerman is released by the judge who must rule on the “Stand Your Ground” law’s application to Zimmerman before trial, or when a jury finds that the evidence doesn’t support the charge beyond a reasonable doubt. Unethical: if Corey took this path  intentionally to take the city and state off the hook, guaranteeing that a judge would take the heat, and everyone could attack the judiciary for following the law, since that is the current fad. Unethical: if she overcharged to give the jury the unenviable job of freeing Zimmerman, since people are used to blaming Florida juries. (See: Anthony, Casey) Requiring less suspicion is the theory, advanced by some defense lawyers, that Corey is over-charging to put leverage on Zimmerman (he will be facing life imprisonment) and squeeze him to agree to a lesser charge, like manslaughter. Prosecutors are not supposed to charge citizens with crimes they know they can’t prove in trial; it is professional misconduct. I know, Jack McCoy used to do it all the time on Law and Order. So do too many prosecutors. It’s still unethical.
  • Zimmerman promptly turned himself in, which means that his blabber-mouth lawyers were even more unethical than I thought they were, suggesting that Zimmerman was on the run and out of state when, obviously, he wasn’t. George is well rid of these two.

If this wasn’t enough to prove that the Trayvon train wreck was still rolling, Sybrina Fulton, the dead teen’s mother, weighed in with this jaw-dropper: Continue reading

For the Attorney General, All Aboard For The Penn State Ethics Train Wreck!

That the Penn State child molestation scandal has metastasized into a full-fledged ethics train wreck can now hardly be denied. The proof is that, as pointed out by Solomon L. Wisenberg on the White Collar Crime blog, Pennsylvania Attorney General Linda Kelly trounced all over fairness to the accused in her statement to the press, violating the ethics rules governing prosecutors in the process.

Rule 3.8 of the Pennsylvania Rules of Professional Conduct states that the prosecutor in a criminal case..

“…shall, except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.”

Rule 3.6(a) forbids a “lawyer who is participating or has participated in the investigation or litigation of a matter” from making… Continue reading

“Twelve Angry Men,” A Million Angry Fools, and the Jury System

Their defendant was probably guilty too.

Ethics Alarms All-Star Lianne Best sent me this link about a member of the Casey Anthony jury who is going into hiding because of all the hate and criticism being directed at jury members and their controversial verdict. Her plight, which must be shared by other members of the much-maligned jury, highlights the unethical, not to mention ignorant, reaction of the public to the Florida ex-mother’s narrow escape from a murder conviction she almost certainly deserved.

The problem begins with publicity. We may need to re-examine the logic behind broadcasting high-profile cases. The combination of live courtroom feeds and quasi-semi-competent commentary gives viewers the mistaken belief that they are qualified to second guess the jury, and they are not. They are not because the jury is in the courtroom, and the viewers aren’t. The jury and TV watchers see different things; individuals communicate different emotions and reactions in person than they do on camera. There is only one fair and sensible way to answer those on-line instant polls that ask, “Do you think Casey Anthony should be found guilty?”, and that is “I don’t know.”

Most of all, the viewers and pundits are not present in the jury room. Continue reading

Ethics Heroes: The Casey Anthony Jury

America saved Casey Anthony, and we should be glad it did.

A Florida jury pronounced Casey Anthony not guilty of murder, aggravated child abuse or aggravated manslaughter in connection with the 2008 death of her two-year-old daughter, Caylee. It did find that she had lied to investigators and police, which was well-established during the trial.

Did she murder her daughter, as the prosecution claimed? Oh, sure she did; I don’t think any of the jury members will be asking Anthony to babysit for their kids any time soon. But the case against her was circumstantial. She was proven to be a liar, irresponsible, feckless, self-centered, deluded and callous, and the prosecution’s theory made a lot more sense that the defense’s alternative scenario. Still, there was not enough evidence to find Casey Anthony guilty of murder beyond a reasonable doubt. That’s the standard, not “it’s almost certain that she did it.” Despite all the media pundits who said it would be a slam-dunk conviction, despite all the community sentiment to make the party girl mother pay with her life for killing her child, the evidence to meet the intentionally tough standard of American justice just wasn’t there.

Already, reporters and commentators are comparing the verdict to the O.J. Simpson trial. Wrong. Continue reading