Ethics Dunces: “More Than 370 Former Federal Prosecutors”

It’s time to add former federal prosecutors to the nauseatingly long list of professionals and professions who have violated basic ethical principles out of uncontrolled animus towards President Trump.

From the Washington Post:

“More than 370 former federal prosecutors who worked in Republican and Democratic administrations have signed on to a statement asserting special counsel Robert S. Mueller III’s findings would have produced obstruction charges against President Trump — if not for the office he held.

The statement — signed by myriad former career government employees as well as high-profile political appointees — offers a rebuttal to Attorney General William P. Barr’s determination that the evidence Mueller uncovered was “not sufficient” to establish that Trump committed a crime.

Mueller had declined to say one way or the other whether Trump should have been charged, citing a Justice Department legal opinion that sitting presidents cannot be indicted, as well as concerns about the fairness of accusing someone for whom there can be no court proceeding.

“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice,” the former federal prosecutors wrote.

“We emphasize that these are not matters of close professional judgment,” they added. “Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here. . . . But, to look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.”

…It was posted online Monday afternoon.

This isn’t even a close call. Professionals don’t do this if they have any respect for their profession, whatever it is. Continue reading

Ask Ethics Alarms: “Why Is It Unethical For A Prosecutor To Say That A Witness Is telling The Truth?”

"Would I try to convict an innocent man?"

“Why would I try to convict an innocent man? He has to be guilty.”

The primary Ethics Alarms topic scout, the Amazing Fred, has posed a question about this case, in which a child pornography conviction was overturned because the government prosecutor repeatedly stated that his witnesses were stating the truth, and that the government doesn’t prosecute defendants who aren’t guilty.

Fred asks the question this way:

“A prosecutor told a jury that prosecution witnesses were credible…Isn’t a defense attorney allowed to discredit prosecution witnesses? Why shouldn’t a prosecutor be free to argue the opposite?

The problem isn’t arguing that prosecution witnesses are credible, but rather the prosecutor appearing to personally vouch for the witness. Lawyers aren’t witnesses, and their opinions aren’t testimony or evidence. A lawyer can tell a jury that a defendant is guilty or innocent, but a lawyer cannot say “I believe “ a witness or “I believe” the defendant is guilty. It doesn’t matter what the lawyers believe, and they prejudice the jury by making their own credibility part of the case. Lawyers don’t have to personally believe in the positions they argue. Continue reading

A Prosecutor Lies, But It’s For A Good Cause…

Yes, Jack McCoy would probably be disbarred in the real world...

Yes, Jack McCoy would probably be disbarred in the real world…

Aaron Brockler, an assistant Cuyahoga County (Ohio, including Cleveland) prosecutor, was fired last month for  using a false identity on Facebook  to try to influence the testimony of  defense witnesses in a homicide case.

He initiated Facebook discussions with two women listed by the defense as alibi witnesses in a murder prosecution. Brockler pretended to be a former girlfriend of the defendant who had a child fathered by him, and urged the witnesses not to “lie for him.”  County Prosecutor Timothy J. McGinty fired Brockler, who by my count violated at least Ohio legal ethics rules 3.4, 3.7, 3.8, 4.1, 4.2 and 8.4, (tampering with evidence, suborning perjury, becoming a necessary witness, prosecutorial misconduct, misrepresentation of facts, contact with a person represented by counsel and dishonesty) and perhaps some others. Prosecutors are not allowed to tamper with defense witnesses, or try to influence any witness testimony. They are not permitted to contact represented parties in connection with a prosecution, unless the lawyers are involved. They are not permitted to lie or pose as someone they are not over the internet. They are not permitted to make themselves witnesses in their own cases. Brockler wasn’t just fired for cause, he was fired for multiple causes, any one of which would have justified kicking him out the door. Continue reading

Ethics Hero: Ken At Popehat

Don't look under that federal prosecutor's bag!

Don’t look under that federal prosecutor’s bag!

Not for the first time by a longshot, lawyer/First Amendment warrior/blogger Ken at the sui generis blog Popehat has earned an Ethics Hero award. This time, his achievement included:

  • Recognizing the widespread perpetration of a double standard that cannot be justified
  • Opposing it, though the legal and journalistic establishments are firmly on the other side, and
  • Remedying the immediate situation through his own efforts.

That’s a good year for most bloggers.

Ken was responding to a story that was widely publicized. Justice Sotomayor  had taken the unusual course of writing a separate opinion as she and her colleagues denied cert (that is, refused to take an appeal) in the case of Bogani Charles Calhoun v. United States, using it to condemn what she called the racist tactics of a federal prosecutor. Among her comments, she wrote, sharply, Continue reading

Ethics Dunce: Buzz Bissinger

It took about an hour after the  Barry Bonds verdict for the first ethics-challenged national sports writer to write something outrageous about it. Not surprisingly, it was Buzz Bissinger, a the member in good standing of the Daily Beast’s stable of annoyingly hypocritical, biased or appallingly cynical writers, Bissinger belonging to the last category.

His post, which pronounced the Barry Bonds conviction “a travesty” in the title, contained one ethics howler after another, any of one of which would have justified an Ethics Dunce prize.

Here they are:

“It is true that the case of Barry Bonds does hit a new low, a new low in the waste of millions of dollars of taxpayers’ money, a new low in the witch hunt of a player who, because he was considered surly and arrogant and unlikable, is now having intimate details of his life revealed (such as testicle shrinkage), a new low in outrageous abuse of government power.” Continue reading

The Ethics of Nailing Barry Bonds

Is Barry Bonds getting the Al Capone treatment? Should we care?

Baseball’s all-time home run king Barry Bonds is finally on trial for perjury and obstruction of justice relating to his 2003 testimony before a grand jury that he never knowingly used steroids. It looks like he may get convicted too, even though the one man who could harm him most, his trainer and childhood pal Greg Anderson, once again has refused to testify and is in jail for contempt of court. (Many—including me— believe that Anderson has a promise of a pay-off from Bonds.)

Essentially everyone who isn’t actively trying to protect Bonds, completely ignorant of the facts of his career, or mentally handicapped knows he was lying and knew it at the time of the grand jury hearings. Barry has been both lucky and relentlessly dishonest, however, seemingly happy to spend the millions he made while cheating and permanently damaging his sport, and pleased with himself for retiring in possession of baseball’s most prestigious home run records, the most homers in a single season, and the most homers in a career.  That Bonds achieved these, and several of his Most Valuable Player awards, while enhanced with the surreptitiously induced body chemistry of a Bulgarian weight-lifter in the 1972 Olympics doesn’t seem to faze him at all. Meanwhile, critics are dredging up the old rationalizations to defend Bonds, none of which apply to his current fix. Continue reading

Outrageous Prosecution: The Eric Rinehart Story

Asst. U.S. Attorney DeBrotas predecessors

Eric Rinehart, a 34-year-old police officer in  Middletown, Indiana, began consensual sexual relationships with two young women, ages 16 and 17. Rinehart was going through a divorce at the time, and in Indiana, he was doing nothing illegal, for 16 is the age of consent in the Hoosier state? Unethical? I tend to think so, but that isn’t part of the story.

One of the girls told Rinehart that she had posed for erotic photos for an earlier, presumably younger boyfriend, and suggested that she do the same for him. So Rinehart gave her his camera, with which she took the lascivious photos. This inspired Rinehart to take some more sexy photos and at least one video of both girls, which he downloaded to his computer.

For this, Rinehart was convicted on two federal charges of producing child pornography. Continue reading