due process

Mystery Solved! Now We Know What The ACLU Has Been Doing While State Governments Were infringing On Basic Civil Rights

/ Jack Marshall / 13 Comments

It was rotting.

The non-profit organization that is supposedly dedicated to protecting the rights of all Americans against government incursions, as the Bill of Rights holds in both letter and spirit, made no effort to protect the citizens whose liberties have been arbitrarily manacled by power-mad governor and mayors, though the pandemic over-reach seemed to be a perfect battleground for the once non-partisan and idealistic group.

However, once Secretary of Education Betsy DeVos spearheaded a much-needed revision of Title IX designed to protect the due process rights of male students accused of sexual misconduct on campus, the ACLU sprung into action—to try to block her.

It is hard for me to imagine how any objective reader could  peruse the revised federal guidelines on how sexual assault allegations should be handled on college and K-12 campuses and conclude that they are hostile to the Bill of Rights in any way. Nevertheless, the  federal lawsuit filed yesterday, with the backing of the ACLU, claims  the changes would “inflict significant harm” on victims and “dramatically undermine” the civil rights of accusers—you know, those women who must be believed when they want men to be punished.

The suit was filed on behalf of four advocacy groups for such women, including Know Your IX and Girls for Gender Equity. The objective is to block the Education Department’s fixes, made necessary by the Obama Education Department’s unethical “Dear Colleague” letter that threatened universities with the loss of funds and other sanctions if they didn’t make it easier for women to get male students kicked out of school in she said/he said disputes.  The  reform regulations will go into effect by August 14 unless they are rejected by the courts.

The rules championed by DeVos  bolster  the due process rights of those accused of sexual assault and harassment, allowing for live hearings and cross-examinations.

The suit, filed in U.S. District Court in Maryland by the American Civil Liberties Union and the New York-based law firm Stroock & Stroock & Lavan LLP, is Orwellian. “This new federal effort to weaken Title IX makes it more difficult for victims of sexual harassment or sexual assault to continue their educations and needlessly comes amid a global pandemic.”

What does the pandemic have to do with anything? I guess it’s because the ACLU had a retreat or something and decided that the Wuhan virus  suspended civil liberties. Says Yahoo!, Continue reading →

The Education Department Finally Crushes The Obama-Mandated Campus Sexual Assault Kangaroo Courts, And Joe Biden Is Deliberately Trying To Make My Head Explode

/ Jack Marshall / 25 Comments

Shut up, Tara, I’m talking about how victims of sexual casualty are being silenced here!

This one was so clear that the New York Times decided to play it straight. Let’s see if the Biden campaign makes them change the headline: DeVos’s Rules Bolster Rights of Students Accused of Sexual Misconduct. It begins:

Education Secretary Betsy DeVos on Wednesday issued final regulations on sexual misconduct in education, delivering colleges and schools firm new rules on how they must deal with one of the biggest issues that have roiled their campuses for decades.

The rules fulfill one of the Trump administration’s major policy goals for Title IX, the 48-year-old federal law that prohibits sex discrimination in programs that receive federal funding, bolstering due-process protections for accused students while relieving schools of some legal liabilities. But Ms. DeVos extended the reach of the law in other ways, establishing dating violence as a sexual misconduct category that must be addressed and mandating supportive measures for alleged victims of assault.

Title IX had become a flash point in recent years after sexual assault cases rocked high-profile universities like Stanford and Duke, and serial sex abuse by staff at the University of Southern California, Michigan State and Ohio State demonstrated how schools had failed to properly investigate complaints. But enforcement of the law has also grown contentious, especially since the Obama administration issued guidance documents in 2011 and 2014 that advised schools to ramp up investigations of misconduct and warned that their failure to do so could bring serious consequences. Critics said schools felt pressured to side with accusers without extending sufficient rights to the accused. And dozens of students have won court cases against their colleges for violating their rights under the Obama-era rules…

The new regulations adopt the Supreme Court’s definition of sexual harassment as “unwelcome conduct that is so severe, pervasive and objectively offensive,” and they require colleges to hold live hearings during which accusers and accused can be cross-examined to challenge their credibility. The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action, not other authority figures like residential advisers.

Exactly. Ethics Alarms has covered many of these episodes, and pointed out the anti-due process aspects of the Education Department’s infamous “Dear Colleague” letter when it was issued. That sop to the militant feminist and anti-male wing of the Democratic Party threatened schools with adverse consequences if those accused of sexual harassment and assault were not presumed guilty, with their reputations and education at risk. The burden of proof was shifted on most campuses, with the accused, rather than the accuser, having the burden of proof. Continue reading →

Observations On The Times Review Of “Apropos Of Nothing”

/ Jack Marshall / 8 Comments

Woody Allen in “Manhattan” with a 16-year-old Mariel Hemingway (playing a 17-year-old)

To be clear, I haven’t read Woody Allen’s autobiography, “Apropos of Nothing,” and I won’t. I found myself unable to endure anything related to Allen after he married his own quasi-daughter following a sexual affair with her while they were both living with Mia Farrow, Allen as her supposed lover and domestic partner, Sun-Yi Previn as her adopted child. While I maintain that the works of artists should be kept separate from the character flaws and misdeeds of their creators, that’s an intellectual and ethical position, not an emotional and gastrointestinal one. The latter are non-ethical considerations, but that doesn’t mean I can ignore them.

If I were a professional book reviewer, however, I would be forced to put my revulsion aside, or refuse the assignment of rendering a verdict on “Apropos of Nothing.” It is undeniable that the New York Times book reviewer, Dwight Garner, couldn’t or wouldn’t do that. To be fair, the Times no longer enforces the core journalism ethics principle that journalists shouldn’t allow personal biases to infect their reporting, but that is an explanation, not a defense. Some observations: Continue reading →

Stop Making Me Defend Woody Allen! And Another Victory For The Illiberal Mob…

/ Jack Marshall / 8 Comments

This blog certainly forces me to defend some  unsavory characters.

Woody Allen is one among the small group of artists who I find so personally repellent that I can’t enjoy their work even while recognizing and appreciating its excellence. That does not mean, however, thatAllen’s work is not important nor that his life and career lack cultural significance. As I wrote here,

“I found myself unable to enjoy any of Allen’s films after he cheated on his de facto wife with his de facto daughter. I also don’t believe in enriching, even indirectly, horrible people in their professional endeavors if I can conveniently avoid it.”

That, however, is a personal choice that I would never impose on others, nor on the arbiters and trustees of culture, as it would be unethical to do so. Thus I wrote, just a few days ago, of Ronin Farrow’s demand that his publishers refuse to hand Allen’s memoirs because he believes his sister’s account that Allen sexually abused her when she was a child,

“I yield to no one in my contempt for Woody Allen as a human being, but he is a major figure in film and cultural history, and his memoirs are of obvious value and interest. Farrow’s publisher’s obligation is to readers and stockholders, not the sensibilities of one author.”

Now we learn that the publishers have been intimidated into dropping Allen’s book after all:

Hachette Book Group on Friday dropped its plans to publish Woody Allen’s autobiography and said it would return all rights to the author, a day after its employees protested its deal with the filmmaker.  “The decision to cancel Mr. Allen’s book was a difficult one,” a spokeswoman for the publisher said in a statement. “We take our relationships with authors very seriously, and do not cancel books lightly. We have published and will continue to publish many challenging books. As publishers, we make sure every day in our work that different voices and conflicting points of views can be heard.”

But she added that Hachette executives had discussed the matter with employees and, “after listening, we came to the conclusion that moving forward with publication would not be feasible for HBG.”

There are those pesky rationalizations again! Oh, it’s a hard decision, so that excuses it from being a bad decision. This is 19 B. Murkowski’s Lament, or “It was a difficult decision” again, which I reviewed yesterday. Next, we get this nauseating sequence, which perfectly embodies 64, Yoo’s Rationalization, or “It isn’t what it is!”

The statement says that “We have published and will continue to publish many challenging books. As publishers, we make sure every day in our work that different voices and conflicting points of views can be heard,’ and follows it up by saying that it will not publish this “challenging book” and thus this different voice and conflicting point of view  will not be heard. Seldom does such complete hypocrisy define itself in the span of so few sentences.

The “difficult” decision that contradicts the company’s stated values results from nothing better than cowardly capitulating to a mob carrying out the goals of cancel culture. In this case, those goals include infringing on free speech and the public’s right to know, if they want to know. Our democratic ideals and the principles enunciated in the Bill of Rights have no chance of surviving if those who own and run companies like Hachette emulate the spineless administrators of educational institutions and dissolve into pools of passive submission every time holding to those ideals and principles threatens to entail a risk of sacrifice or adverse consequences. Continue reading →

Poll: “Unafraid and Unashamed”

/ Jack Marshall / 29 Comments

Artist Julian Raven (that’s him on the right above) wants to force the Smithsonian Institution’s National Portrait Gallery to include his “Unafraid and Unashamed,” which you can see above. On the artist’s website  can be found links to his Supreme Court petition and  other documents related to his Free Speech suit “to force the gallery to add a portrait of President Trump to its collection of images of people of remarkable character and achievement.” Raven notes that the gallery has displayed artwork from Barack Obama’s 2008 presidential campaign since 2009, and in his 39-page filing with SCOTUS, argues that gallery’s refusal to hang his portrait is based on an anti-Trump bias.

Raven’s crusade has been treated as an oddball saga and a joke, as in a  profile in the Washingtonian Magazine.

Some conservative writers are taking his cause seriously, however. Here’s Lawrence Jarvik:

Raven’s challenge dramatizes how national cultural institutions established to serve all the American people, such as the Smithsonian, have been hijacked by dangerously partisan factions which seek to exclude, marginalize and erase  “Others.”

As his brief demonstrates, the Smithsonian had accepted campaign posters for Barack Obama and Hillary Clinton, in addition to huge oversized paintings of Bill Clinton, Barack and Michelle Obama. It had a special exhibition for the Obama Inauguration, and maintains a sort of shrine to the Obamas to this day. 

Raven’s case likewise provides evidence that decision-making at the Smithsonian is arbitrary and unfair. He was never provided a written decision on his application. Instead, he received only a phone call from the director, which from his account sounded conclusory, partisan, and unfair.

As he points out, as an American citizen—Raven is entitled to due process. Yet, to this date, he has no idea as to how his work was evaluated, nor what rubric was applied to his submission…versus that used for pictures of Obamas or Clintons.

Although “Unafraid and Unashamed” may not be the most beautiful portrait ever painted, Raven’s legal brief makes clear that the official criterion for display by the National Portrait Gallery is historical significance. No reasonable person could deny that Donald Trump’s election in 2016 had historical significance.

That’s true. It is also likely, certain, even, that the selection criteria used at the Smithsonian, as in every other art museum, is subjective and thus certain to be biased in one respect or another. Since the question involves pro-Trump art, and it would be hard to find an artist or significant arbiter of the arts in Washington, D.C. or anywhere else who doesn’t loathe President Trump, the issue of bias is not an insignificant one. Continue reading →

Will The Democrats Really Let Someone As Obviously Addled As Joe Biden Be Their Nominee?

/ Jack Marshall / 27 Comments

Doing so is per se irresponsible and incompetent.

Before someone tries to play “whataboutTrump” with me, I would remind him, her or it  that in 2016 I wrote that the Republicans had an obligation to refuse to nominate Donald Trump, having failed their obligation not to let him run in the primaries. I was right then, despite the fact that nominating Trump ended up well for the  party, and so far, on balance, for the country, especially when one considers what the Democrats have become. I’m also right about Biden now. If the Democrats expect to catch lightning in a shot glass like the GOP, they are taking a really reckless gamble.

Let’s look at what old Joe said just over the last few days…

  • During a December 29 campaign even in Peterborough, New Hampshire,  Biden completed an attendees question “If we don’t stop using fossil fuels…” with “We’re all dead!”

Now, what is that? Deliberate hyperbole? Outrageous fear-mongering?  Complete ignorance? Nobody has suggested that “we’re all dead” even under the most extreme projections of climate change doom. My guess is that Joe knows nothing about climate change, and that he’s just pandering to the substantial climate change nut-case component of the increasingly hysterical Democratic base. But he could be so stupid that he really believes this.

In addition to the undeniable fact that this is exactly the kind of statement that the mainstream media  pillories Donald Trump for even when it’s clear  s clear can be that he’s exaggerating, Biden’s over-the-top rhetoric feeds the rising Democratic drift toward totalitarianism. If we’re all going to die, then a dictatorship can be justified as a last resort. Continue reading →

It Is With Great Reluctance That Ethics Alarms Concludes That As Generally Repugnant And Vulgar The Term “Asshole” Is, Mayor Pete Buttigieg Is One.

/ Jack Marshall / 8 Comments

If this was just disgraceful pandering, grandstanding, and shameless virtue-signaling, he would only  have proven himself to be a jerk—a big jerk, to be sure,  but still just a jerk. But it is far more.

The new fad contender for the Democratic Presidential nomination is returning thousands of dollars in donations because they came from two lawyers who had the audacity to represent Supreme Court nominee Brett Kavanaugh as he attempted to defend himself against the contrived  ambush accusation of a sex crime, made in a Congressional hearing  on national television, a ploy designed to destroy his reputation. Buttigieg’s campaign said that it will not accept funds from people who helped secure the justice’s seat on the Supreme Court. You know. Dirty money.

Buttigieg’s campaign had received $7,200 from Alexandra Walsh, and $2,800 from Beth Wilkinson, Walsh’s law partner. Both represented Kavanaugh during his Senate confirmation ordeal. As I have vowed to point out every time some ignoramus asserts that lawyesr must be punished for the character, conduct or beliefs of the clients they represent and are responsible or culpable in any way for what those clients have said or done (or NOT done), it is a core and essential principle of our legal system that such an assumption is not only wrong but dangerous. It threatens the right of every citizen to receive competent legal representation and access to our laws and other rights.

Here, once again, is my favorite ethics rule, from the ABA Model Rules of Professional Conduct:

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

Whether the target is Hillary Clinton, Ted Cruz, Elizabeth Warren, Harvey Weinstein’s defense attorneys (also here), Larry Tribe, Gitmo defense lawyers, or Clarence Darrow, Johnny Cochran, Leslie Abramson and other defense lawyers who defend murderers and worse, the false claim that lawyers who take on unpopular, repulsive or guilty clients have done anything less than protected  the Bill of Rights and the rule of law is either rank ignorance or a deliberate effort to reduce the civic literacy of the public.

Buttigieg isn’t a lawyer, but he is very well educated and has a reasonable claim to brilliance.  Thus he knows and understands what lawyers do, but is acting as if he does not, intentionally making the public stupid (or keeping it conveniently as stupid as it already is ) for his own benefit.

Despicable.

But that’s not all. Continue reading →

Sentencing Ethics: The Perplexing Relevance Of “Acquitted Conduct”

/ Jack Marshall / 14 Comments

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!

/ Jack Marshall / 25 Comments

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

/ Jack Marshall / 8 Comments

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 →