Florida

When Is It Ethical For Lawyers To Testify Against A Client? Here’s An Example…

/ Jack Marshall / 4 Comments
Next time, stick to baseball hypotheticals, Darrell.

Next time, stick to baseball hypotheticals, Darrell.

From Panama City, Florida comes this rare legal ethics scenario. Darryl Mack, 22, accepted 20 years of prison in exchange for a no contest plea to a murder charge, after he learned that his original attorney in the case would be testifying for the prosecution. The revelation by an accused  criminal’s own lawyer of what most think are privileged statements would be devastating evidence, which is why lawyers are almost always prohibited by the ethics rules from doing this.  Mack had been trying to block the testimony on that basis. However, Circuit Court Judge James Fensom ruled those statements could be used against Mack at trial. Why? It is because of a useful and necessary exception to the ethics rules known as the crime-fraud exception.

If you are a “Breaking Bad” fan, this one of the reasons Saul is a crook, not a lawyer.

“The last thing a lawyer wants to do is testify against his client,” the prosecutor in the case explained. “But it is not reasonable to ask your lawyer to be your conspirator.” That means that a request for such advice is regarded by the profession as a request for assistance in breaking the law, and a lawyer cannot ethically give such advice. Such a request isn’t confidential, and isn’t privileged. A lawyer doesn’t have to reveal such information, but he also risks being charged as an accessory if the proposed crime is committed.

Timothy Hilley, Mack’s initial legal counsel, testified in a closed courtroom that Mack had posed a hypothetical to him at the end of a jailhouse interview, and Hilley viewed it as a veiled statement of  intent to commit murder. Mack allegedly asked his then defense counsel what would happen if a witness was unavailable for the trial, a question Hilley took to refer to a witness to the July shooting death of 24-year-old Tavish Greene, the victim in the murder Mack was charged with.

“Mack was on his way to leave, and he walked over to door and he said, ‘Could those statements be used if he was murdered,’” Hilley testified.
“I said, ‘No, it would be hearsay.’” Mack then asked, “How much time do I have?” Hilley said. “And I didn’t catch it at first, but then he asked again, ‘How long before trial?’ ” Mack left the room after Hilley told him the trial could begin as soon as June.  The lawyer reported the incident to the State Attorney’s Office, and withdrew as Mack’s attorney. Continue reading →

The Eternal Ethics Conflict: Drawing Lines, Enforcing Them

/ Jack Marshall / 70 Comments

cross-the-line

Yesterday traffic caused me to arrive a bit later than usual at my monthly gig as the instructor in the legal ethics portion of the D.C. Bar’s mandatory orientation session for new admittees. It was after 9 AM (my segment starts at 9:20), and as I approached the glass doors to the lecture hall lobby, I saw a distraught women angrily berating one of the D.C. Bar staff. I knew instantly what was going on.

You see, the courts approving the program insist that every attendee be there at the start: the doors close at 9, and anyone arriving late, no matter what the reason, is out of luck. They can’t attend the session, can’t get credit for it, and have to return the following month. That rule is on the website and in all communications with the Bar, along with the warning that there are no exceptions, and no effective excuses. Every month, someone misses the deadline; every month, that person goes ballistic. This women, however, was remarkable.

She had flown to D.C. on the redeye, she said. Her cab was stuck in traffic, and when she arrived in the cavernous Reagan Building where the day-long course takes place, she had ten minutes to spare. Unfortunately, the Reagan Building eats people. I have wandered its halls lost many times. I keep expecting to encounter a bearded, Ben Gunn-like figure who grabs my pant leg and jabbers about how he’s been trapped by the bewildering signage, and has been living off of Cub Scouts since 1992. The woman made it to the right hall in just 12 minutes, which is impressive without a GPS. But she was still two minutes late. Continue reading →

Big Lies Die Hard

/ Jack Marshall / 228 Comments
No, this was no way to pick a President..

No, this was no way to pick a President..

It is clear after nearly 15 years that bitter Democrats will always believe that the 2000 Presidential election was “stolen,” just as the losing parties in 1824, 1876 and 1988 claimed those elections were stolen. (In 1876, the election was stolen.) But as the cliche goes, while they have a right to their opinion, they do not have a right to their own facts. I understand why Democrats flogged this myth during the first term of the Bush Presidency—it was irresponsible, dishonest and divisive, and helped make political discourse the vile swill it is today, but I understand it. However, history should not be permanently warped by strategic lies.

The 2000 Election Big Lie turned up again today, in an indignant letter to the Washington Post. George Will had written a column condemning third party Presidential candidates for warping elections, using Ralph Nader’s quixotic 2000 run as an example and claiming that Nader cost Gore the White House. Will was wrong. Nader ran on his usual “pox on both parties” platform, and nobody knows how his voters would have split if he hadn’t run, or how many of them would have voted at all. Nader’s lawyer, Oliver Hall, protested against Will’s analysis in a letter to the editor, properly pointing out that a chaos-theory illustrating confluence of factors led to Gore’s narrow electoral college loss, not the least of which was that Gore was an inept candidate. (The person most responsible for Gore’s defeat, of course, was Bill Clinton.)

That correct interpretation, however, runs counter to the Big Lie, so partisan reader Bill Yue reiterated it today. His letter claimed that “the removal of any one of those elements ” mentioned by Hall would “likely have put Gore in the White House,” “for example, if the Supreme Court had allowed the recount to continue.” Continue reading →

Ethics Poll: Target Practice For The North Miami Police

/ Jack Marshall / 31 Comments

mug shot targets

From the BBC:

[P]olice officers have been…using mug shots of black suspects for target practice in Florida. The images used by North Miami Beach Police were discovered by a female soldier who used the firing range after a police training session…Police Chief J Scott Dennis said that his officers had used poor judgment but denied racial profiling.He told NBC that using real suspect images was an important part of training for his sniper team and that his officers had not violated any policies.

“There is no discipline forthcoming from the individuals who were involved with this,” he said.

A police spokeswoman added on Friday that officers use targets of all races and genders in their training sessions.

Embarrassing. A public relations nightmare for the department. But was using the mugshots unethical? Why?

Let’s vote:

 

Criminal Charges For Web-Shaming? Sure.

/ Jack Marshall / 22 Comments
Gee, I wonder why that kid is a bully?

Gee, I wonder why that kid is a bully?

Police in Winter Garden, Florida have arrested and charged Christle Prado and her, ah, “roommate” for forcing her 10-year-old son to wear a dress, and then posting photos on Facebook to humiliate him. Discipline, you see; he had wet his bed.

The model mom and Keith Driscoll were charged with cruelty toward children and infliction of mental injury on a child.

Good.

I’ve written about web-shaming children before, and characterized it as child abuse, which it is. A maxim here is that when ethics fail, the law must take over. It is a poor second option, but for this couple and those like them, including the parents of the boy in the photo to the left, it is a necessary and an ethical one.

Police learned about the abuse after one of the boy’s relative saw posted photos of the boy dressed as a girl and wearing makeup. He was crying. I wonder how many of Prado’s friends “liked” those photos on Facebook? Prado told police that Driscoll came up with the idea to dress her son like a girl as a way to discipline him, went along with it because she “did not want to cause problems with her living situation.”  Oh, well, that’s all right then, ma’am—you can go now. Driscoll, you see, is her sleep-in landlord.

Yechhh. I wonder what else she’ll do to her son to keep that cozy relationship peaceful? Cigarette burns? Whipping? Water-boarding?

The child cruelty charge is a second-degree felony. I’m all in favor of expanding such charges to apply to the parents who post photos of children holding signs that read “I pooped on the floor” and other self-incriminating screeds compsed by mom and dad, even those who aren’t doing it to interfere with their sex-for-rent arrangements. In fact, I’d expand it to include those Jimmy Kimmel fans who make YouTube videos of their children crying because their Christmas gift appeared to be old sweat socks or broccoli, in the hopes that Jimmy will make their exploitation of their own kids go viral. (An excellent discussion of everything that is wrong with child-shaming on the web can be found here.)

Using the web to humiliate your powerless children—forever, remember—is wrong, but if parents are so stupid, cruel and ethically inert that they can’t fathom this basic Golden Rule principle, it should be illegal too.

___________________________

Pointer: Fark

Facts: WFTV

Continue reading →

Ethics Quiz: The 90-year-old Scofflaw Humanitarian vs. The Heartless Mayor Who Isn’t Really

/ Jack Marshall / 17 Comments

Seiler

[Fred, one of my two regular ethics issue scouts (Alexander Cheezem is the other, and what I would do without their assistance, I do not know: thank you, thank you, thank you, guys!), flagged this classic ethics conflict several weeks ago.]

Some sources reported that a “90-year-old man was arrested for feeding the homeless.” This set off typical fact-free indignation on the social media and talk shows, not to mention the angry e-mails from around the world: Charity illegal???  A kind old man arrested just for trying to help the poor! Cruelty!!! ARGGGHHH!!!

Naturally, this was not what really happened.

For 23 years, since he was 67, 90–year-old Arnold Abbott and his non-profit organization, Love Thy Neighbor, have provided food for the homeless at a public beach in Fort Lauderdale, Florida on Wednesday of every week at 5:30 p.m. This year, on October 21, the City of Fort Lauderdale Commission passed an ordinance that banned such food distributions in public. The ordinance required that organizations distributing food outdoors would have to provide portable toilets for use by workers and those being fed. It’s a health and safety regulation, for the benefit of homeless and vulerable. A few days after the ordinance took effect, on a Wednesday, at a bit after 5:30 PM, Abbott  was approached by police officers and cited for violating the ordinance. He was not arrested. He was told that he must appear in court.

After Fort Lauderdale Mayor Jack Seiler was called everything from a monster to a Republican (he’s a Democrat), someone finally asked him what the ordinance was all about and questioned his police department’s treatment of the kindly senior. “We hope he feeds, ” Seilor said. “He has a very valuable role in the community. All we’re saying is he can feed the next block over. He can feed at the church. We want them to be in safe secure settings. We wanted them to be in a sanitary matter. We them to have facilities available before and after.” That seems reasonable.

Seiler has also offered an explanation for the ordinance, which was backed by the Chamber of Commerce, that sounds more, well, Republican, saying that  providing the homeless food in public only enables homelessness, and that Fort Lauderdale wants the homeless to use government and church services. “If you are going to simply feed them outdoors to get them from breakfast to lunch to dinner, all you are doing is enabling the cycle of homelessness,” Seiler says. Well, that’s debatable, but it isn’t unreasonable.

Still,  it’s hard to teach old humanitarians new tricks, and Arnold is defiant. Continue reading →

On Cosby, Clinton, And An Ethics Dunce Convention In Melbourne, Florida

/ Jack Marshall / 18 Comments

Cosby billboard

It is kind of funny, isn’t it, to hear and read the shocked reactions of pundits to the fact that probable serial rapist Bill Cosby got a standing ovation from his concert crowd of 2100 in Melbourne, Florida last night? “What could this mean?” they ask. Does this mean that Cosby’s popularity will survive the onslaught of women reporting that he drugged and raped them years ago? Well, no, it means that 2100 people who paid premium prices to see Bill Cosby and attended his concert even after hearing more than sufficient evidence that he is a sick hypocrite like Bill Cosby.

Wow.

What a surprise.

Nor should it be any surprise that that many people will adopt rationalizations and tortured logic to avoid confronting the cognitive dissonance resulting from a self-styled moral exemplar having a spectacularly immoral, indeed criminal, past. After all, the Democratic National Convention, with a lot more that 2,100 in attendance, cheered serial sexual harasser and sexual predator William Jefferson Clinton as he spoke to a throng protesting Republican attitudes toward women, as progressive journalists and pundits from MSNBC to the New York Times nodded in approval.

Unrelated, you say? Wrong. The phenomenon is exactly the same, and therein lies a serious problem for Hillary Clinton. The rationalizations used to rescue her husband from accountability for his decades long abuse of women are exactly the same as those being used now by Cosby’s desperate fans to try to keep laughing at the wise humor of the icon who includes in his storehouse of wisdom such nuggets as… Continue reading →

Child Protection Ethics: The Case of the Boozing Third-Grader

/ Jack Marshall / 23 Comments
This isn't Patricia Denault 's son. I hope...

This isn’t Patricia Denault ‘s son. I hope…

In Longwood, Florida, Patricia-Ann Jackson Denault thought it would be funny to post pictures of her son, 7, drinking whiskey on Facebook, titling it “first shot.” Someone thought it was more alarming than funny, and called the police. Three uniformed officers and Child Protective Services came to her house and interviewed both her and her kids. Denault explained her humor theory, and said she wanted the children “to experience alcohol in a controlled setting.”

They were not impressed. She was arrested and charged with child neglect.

Apparently this is becoming a cause celebre in conservative circles, and example of the nanny state going too far. I don’t see it:

  • A photo on Facebook showed an adult persuading a very young child to drink a substance that can be dangerous in large quantities. Was that the only sip, or the first of many? I think the inquiry was responsible.
  • The mother used her child not only as a prop, but as a prop involving alcohol. I would be dubious about the judgment of such a parent.
  • She said that she wanted a seven-year-old “to experience alcohol in a controlled setting” ??? Why? What else would she like to see a child experience in a controlled setting?

I think these were sufficient reason to check on the welfare of the children in that home, and to be concerned. Should she have been arrested? I don’t know what the children said, or what she told the police. The news reports make Denault sound like a fool, but being a stupid parent does not necessarily make one a dangerous parent. If this is all there is, the arrest is overkill. Continue reading →

Ethics Dunce: Doug Wilkey

/ Jack Marshall / 16 Comments

Let’s shame this guy but good: he deserves it.

The horror.

The horror.

Dunedin, Florida 12-year-old T.J. Guerrero has received a neighbor’s  permission to set up a lemonade stand in front of his property for the last couple years. This isn’t some kind of mega-stand: it’s exactly like the ones I purchased sweet drinks of varying quality from last weekend. It’s Florida, and T.J. is unusual: he is virtually running the 3 to 7 business all year long.

Another neighbor named Doug Wilkey, 61-years-old going on “Get off my lawn, you lousy kids!,”  has emailed City Hall at least four times in two years demanding that T.J. ‘s traditional foray into junior capitalism be shut down. He says that the kid’s  operation is illegal, and that it causes excessive traffic, noise, trash, illegal parking and other problems that, he says, threaten to reduce his property values.

To its credit,  local government officials appear to have the sense of proportion Wilkey does not. “We’re not in the business of trying to regulate kids like that; nor do we want to do any code enforcement like that,” said Dunedin planning and development director Greg Rice. “We are not out there trying to put lemonade stands out of business.” Continue reading →

The Ethics Scrooge On The Starbucks Pay-It-Forward Ponzi Scheme

/ Jack Marshall / 86 Comments

KONICA MINOLTA DIGITAL CAMERA

The Ethics Scrooge here.

If you think I’m going to get all misty eyed about the “random acts of kindness” fun and games Florida Starbucks customers have been amusing themselves with lately,  you are sadly mistaken.

The happy-talk story of the week—and I admit, the nation needed one—concerned a St. Petersburg, Florida Starbucks where an early morning customer at the drive-through window decided to “pay it forward” and buy coffee for the next person in line.That customer emulated the spirit of the Kevin Spacey weepie,  and bought a drink for the next person in line at the drive-through, and so it continued throughout the day, with 378 customers purchasing drinks for the strangers in line behind them, a so-called altruism chain that lasted 11 hours.

Awww. Continue reading →