Sentencing Ethics: The Perplexing Relevance Of “Acquitted Conduct”

Senators Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that if passed and signed into law would  prohibit the use of so-called “acquitted conduct” at sentencing. What is acquitted conduct, you might ask? It is charges for which a defendant has been found not guilty that a sentencing judge nonetheless considers when sentencing that defendant for the crimes the jury says they did commit. This practice give prosecutors a special edge. Knowing that a judge may consider at sentencing every offense the prosecutor charges, a prosecutor can charge a defendant with an offense he knows he can prove beyond a reasonable doubt, and then charge more serious offenses that he probably can’t  prove. Even if jurors only reach a guilty verdict on the charges proved beyond a reasonable doubt, and refuse to convict on other charges, a judge can, and often does takes all the charges into consideration at sentencing.

“If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment,” Grassley said in a statement released this week. “That’s not acceptable and it’s not American.” Under the law he is proposing with Senator Durbin, if a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then sentences you should be able to consider only offense you were found guilty of.

What’s going on here? It is simply that the Federal sentencing rules currently allow a judge to consider crimes he or she believes the defendant is guilty of committing regardless of what the jury decided, just as a judge can take other factors into consideration. In such cases, a judge may use a preponderance of the evidence standard, not the criminal law standard of  beyond a reasonable doubt, to conclude that the jury was wrong and that a sentence should reflect conduct other than what the prosecution was able to prove to the jury’s satisfaction. Continue reading

High Noon Ethics Warm-Up, 9/5/2019: Arggh!…Yay!…Yechhh!…Hmmm…and Good!

Mornin’!

1. More historical ignorance to make you suicidal: Here’s Anna L.’s review of her visit to the Gettysburg Battlefield on the park’s Yelp page:

Boooorrrringggg. First off, it was nothing like the movie. All I saw were a bunch of fields and rocks. All the tourist shops, bars, and hotels in the area kept saying how I should check this place out. I kept getting confused with all of the plaques and monuments. Who was fighting who, I have no idea. The abandoned cannons looked tacky. I give this one star for the overweight character actor in the square, but that’s about it. Yaaawnnn.

I don’t even want to think about the political positions and favored candidates of an American this…this…I can’t even think of a good description. “It was nothing like the movie”????? And how many people like her are out there, rotting our culture and values from within?

Arrgh.

2. It’s about time. wouldn’t you agree? I’m amazed this took so long. Starting next year, BMC Toys in Scranton will begin adding  little green  Army women to the little green Army men that are such a standard kids’ toy. Since they debuted in 1950s, none of the iconic toy’s  manufacturers  have crossed the gender line. BMC is one of the  ew producers of plastic soldiers left in his country, and will soon be offering these:

Yay! Continue reading

Sexual Harassment, Cancellation Culture, Anonymous Accusers, And Placido Domingo

A report last week revealed that nine women accuse towering opera figure Placido Domingo of sexual harassment.  None of the accusations have been investiaged or substantiated, and only one of them isn’t anonymous. Yet two American institutions, the Philadelphia Orchestra and the San Francisco Opera, immediately canceled their upcoming concerts with him, giving the now-familiar “safe environments” explanation. None of. Domingo’s many upcoming scheduled performances in Europe were canceled, however, as sponsors took what the New York Times calls  “a wait-and-see approach,” or what used to be known in this country as “Let’s not punish someone based on unsubstantiated  accusations alone.” Or fairness. Due process. The Golden Rule.

There are countervailing factors pulling every which way. As I understand it, #MeToo  and “Time’s Up” insists that female accusers must be believed, unless the accused is the black, Democratic Party’s Lieutenant Governor of Virginia, or the harassment is caught on camera repeatedly, as in the case of the Democratic Party front-runner for President. In the arts, these allegations have had mixed effect. Conductor James Levine has not performed in public since he was fired by the Metropolitan Opera last year after accusations of sexually abusive and harassing conduct were substantiated in an investigation, but when Pixar chief and creative muse John Lasseter was fired for being a serial hugger (rather like that Democratic Party front-runner) he was rapidly snapped up by a rival studio that gave him as much power and more money. Go figure.

There is the anonymous factor: it is my long held position that an anonymous accusation relating to the workplace should be regarded as no accusation at all, meaning that there has been one allegation of sexual harassment against Domingo. An accused individual cannot address claims when he doesn’t know their source or facts. I have been the target of false anonymous accusations—not of harassment—in my career, and as a manager in various businesses and associations, I told staff that unless they were willing to go on the record with an accusation of wrongdoing, I didn’t want to hear it. It is too easy to destroy careers and reputations with false accusations with no accountability attached.

The other issue is the multiple accusation factor. In sexual abuse and harassment, there are no one-time offenders unless there has been a massive miscommunication. The typical scenario is that a single accusation triggers several, often many, more with near identical facts. This is why I did not believe Anita Hill and Dr. Blasey-Ford, and why I did believe Bill Cosby’s many accusers.

Timing is also important. Ancient accusations of sexual misconduct—I would say anything more than five years old is dubious—arriving after memories have faded, evidence has vanished and seemingly timed to do maximum damage to the accused should be treated with skepticism and a presumption of  bad will, especially when the accused is a public figure.

And yet… Continue reading

Will The “Woke” American Bar Association Endorse Reject “Innocent Until Proven Guilty” In Sexual Assault Cases?

Sadly, I wouldn’t be surprised.

This is the main reason that I am no longer a member of the ABA, which has become more political and partisan with each passing year. I have often presented ethics courses for ABA sections in the past, and will probably do so in the future.  But the legal profession is one of many that has lost its ethical bearings of late, and the resolution its largest and most prestigious association will consider this week (the ABA’s annual convention begins today) is proof.

Here is the resolution (emphasis mine):

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

This is essentially the same standard that the Obama administration forced upon colleges and universities with its infamous “Dear Colleague” letter, resulting in many male students being persecuted, punished, suspended, or expelled without due process, based on an institutionalized bias in favor of female accusers.

The National Association of Criminal Defense Lawyers effectively expressed how sinister the resolution is in a statement issued on July 25, stating in part,

The criminal defense lawyer association notes elsewhere in its letter that this definition would necessarily undermine the Fifth Amendment right to remain silent, since “[t]he resolution will often force the defendant to testify in order to present evidence that consent was expressed.”

The NACDL also points out that the American Law Institute proposed revising its l Model Penal Code to include an affirmative consent standard. The ALI’s membership  rejected that proposal, as it should have, and did so decisively.

The ABA membership is more politically diverse—and principled—that the official posturings of the association itself suggests. I suspect, and hope, that this abomination of a resolution, which would be a disgrace for any legal organization to endorse, will fail. The fact that such a resolution would even make it to the voting stage is one more ominous piece of evidence that the progressive forces seeking to weaken the Bill of Rights are infiltrating all of our professions and institutions.

What Is Justice For Kevin Spacey?

 Prosecutors in Massachusetts this week dropped a sexual assault charge against the actor Kevin Spacey, in the only case against the alleged serial sexual harasser to be brought to trial. Mr. Spacey was accused of fondling an 18-year-old man at a Nantucket restaurant three years ago, one of the few of the accusations against him that wasn’t too old to try and that involved criminal conduct. The accuser’s lawyer said that a smartphone being sought as evidence by the defense  had disappeared, then the accuser invoked the Fifth Amendment after being warned that he could be charged with a destroying evidence, a felony if he had deleted contents on his phone. When the young man continued to assert his right against self-incrimination,  the Cape and Islands district attorney announced that it was dropping the prosecution “due to the unavailability of the complaining witness.” There wasn’t much choice.

Spacey’s far from out of the metaphorical woods. Around the same time as the Nantucket accusation, the Old Vic theater in London announced that 20 people had  accused Spacey  of inappropriate behavior  during his 11-year stint as the theater’s artistic director. There is another investigation in Los Angeles.

So now what? None of the allegations against Spacey have been proven, though, as with Bill Cosby, the sheer number of them leave little doubt—but still some— that he is a serial sexual predator. Spacey’s own house of cards began falling when actor Anthony Rapp gave an  interview to BuzzFeed accusing Spacey of assaulting him at a party when Rapp was only 14.  The accusation was never proven, but suddenly more stories of sexual misconduct in the workplace and elsewhere started surfacing regarding Spacey. (There is a lot about Spacey’s conduct and problems on Ethics Alarms, here.) Continue reading

Ethics Note To The Chicago Cubs: Double Standards Promote Racial Discord Even When They Aren’t As Stupid As Yours

The Chicago Cubs ridiculous virtue signaling and capitulation to political correctness bullying is metaphorically coming home to roost.

Love it.

In May, as I wrote about here, the Cubs banned a fan for life because he made the ubiquitous “OK” sign behind a black broadcaster. Nobody had any basis to say with certainty what the fan meant, but after the Twitter mob demanded the fans head, the Cubs meekly complied. You see, the OK gesture might have meant, “My race is better than your race,” because a rumor was circulated online that “OK” is a white power symbol.  It might have been trolling by someone who knew that the  symbol would trigger social justice warriors. Or, you know, OK might have just meant “OK” as it as for almost 200 years.

Hmmm…tough one! Occam’s Razor, anyone? Continue reading

Memorial Day Weekend Ethics Warm-Up, 5/26/19: The Fish, The Fist Bump, And Harriets’s Lament

Good Morning!

Here is another of my father’s favorite Sousa marches, “The Black Horse Troop.” I remember thinking about the march when I saw that the riderless horse in my father’s Arlington funeral procession was all black.

1. Let’s start with a fish story…

That’s Tom Volk holding  the nearly 17-pound walleye he caught along the Heart River in Mandan, North Dakota. Little did he know that what was briefly a happy experince for him would end up with him being attacked on social media and prosecuted by the state. A fish is considered hooked illegally—it’s actually a crime—if the hook was in the fish’s back rather than its mouth. As soon as Volk claimed the record, he was accused of cheating. The Game and Fish Department opened a criminal investigation. Volk had to hire  a lawyer, and the prosecution could have an impact on his career:  Volk serves as a city councilman in North Dakota and works in drug prevention for the state government.

Finally game wardens compiled an 11-page report on the fish after conducting witness interviews. The county prosecutor said  his office had reached “a consensus view” that the walleye had been improperly hooked. The chief game warden said he was convinced that the fish was “foul-hooked,” but also believed that Mr. Volk might not have known about the infraction until after he left the riverbank. His department issued a written warning, disqualifying the fish from record consideration, but no criminal citation.

The walleye could not be reached for comment. Continue reading