Ethics Observations On Three Recent Judicial Decisions

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I.

An appeals panel throws out the emoluments lawsuit filed by D.C., Maryland.

A three-judge panel of the US Court of Appeals for the 4th Circuit  held that the District of Columbia and Maryland lack standing to sue President Donald Trump over claims related to his hotel in Washington, D.C. The court  ordered a lower court to throw out the lawsuit with prejudice, meaning the lawsuit alleging violations of the Constitution’s emoluments clause could not be refiled.

Good.

The Emoluments Clause nonsense has been one of the more contrived “resistance” theories and this lawsuit was part of the organized plan of harassment against the President. Two Democratic jurisdictions filed this purely political suit as their contribution to the “resistance.”

“Even if government officials were patronizing the hotel to curry the President’s favor, there is no reason to conclude that they would cease doing so were the president enjoined from receiving income from the hotel,” the 36-page opinion said. “The hotel would still be publicly associated with the president, would still bear his name and would still financially benefit members of his family….Neither [emoluments] clause expressly confers any rights on any person, nor does either clause specify any remedy for a violation.”

The unique conflicts of interest issues presented when a multinational business owner becomes President was never imagined by the Founders, and once Trump was elected it was too late to deal with the problem equitably. The Democrats and the news media, not to mention Trump’s Republican rivals for the nomination and the legal establishment—and commentators like me, all neglected their duty to raise the issue in a timely fashion, mostly because they never thought Trump would win. They are all at fault for their own mistake. At some point, however, the issue has to be examined fairly and non-politically, with rules emerging that do not make the Presidency unachievable by anyone who is not a professional politician.

II

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OH! The Teen Who Raped A Drunken Girl And Sent The Video Of Him Doing It To His Pals On Social Media “Has A Good Family!” That Changes Everything, Then! [UPDATED]

A New Jersey Appeals Court has reversed a decision of a Family Court judge who has a claim on the title of “Most Incompetent Judge Ever.”

The facts showed that  a drunk 16-year-old boy raped an even more drunk  16-year-old  in the basement during a party. The boy recorded a video of  himself penetrating her from behind, and then shared it on social media among friends along with a text that said, “When your first time having sex was rape.” The victim could barely recall the incident, and when she confronted her attacker, he denied that he had raped her  even as he continued to circulate the video. When the victim, known only in public records as Mary, an alias, because of her juvenile status, learned this, she had her mother contact authorities.

The Monmouth County prosecutor’s office wanted the boy to be tried as an adult. They applied for a waiver of his juvenile status, arguing that the alleged assailant’s actions were “predatory and sophisticated.”  “At the time he led ‘Mary’ into the basement gym, she was visibly intoxicated and unable to walk without stumbling,” the prosecutor wrote. “For the duration of the assault, the lights in the gym remained off and the door was barred by a foosball table. Filming a cellphone video while committing the assault was a deliberate act of debasement.”

In criminal law, the defendant’s lawyer always tries to get a “good judge,” and in this case, the accused rapist teen hit the jackpot. Judge James Troiano of Superior Court was the ideal judge for this defendant, because he apparently leads his profession in rationalizing idiocy. “Good,” in this case, meant incompetent. Continue reading

Now THAT’S An Unethical Judge!

But perhaps a potential Democratic Presidential candidate…or Virginia Lieutenant Governor maybe?

Judge Scott Gallina of Asotin County in Washington was arrested at the courthouse last week and charged with second-degree rape. He was also charged with fourth-degree assault with sexual motivation and indecent liberties, as described by  a press release by Washington’s attorney general.

Eleven women claim that Gallina subjected them to varying degrees of sexual misconduct including unwanted touching and inappropriate comments. The  women even adopted a buddy system so that no one would risk being alone with the judge in his chambers.

The rape charge involves a woman who  told investigators that she didn’t report Gallina’s alleged conduct  because she  feared she wouldn’t be believed. She did complain to Judge Gallina, who said he “could not help it because he liked beautiful women.”

And it gets creepier. Continue reading

Morning Ethics Warm-Up, 3/25/2019: Woke Up Really Sick Of Democratic Party BS This Morning. I’m Sure I’ll Get Over It…

Good Morning!

…as the Mueller report lets the sunshine in…

1. Thank goodness judges don’t bake cakes…the American Bar Association’s Standing Committee on Ethics and Professional Responsibility have issued Formal Opinion 485. It holds that judges who perform marriages, either as an obligation of their office or by choice, may not refuse to do so for same-sex couples. The opinion emphasizes that regardless of their backgrounds, personal views or philosophies, judges must follow the law and act impartially, free from bias or prejudice.

I’d say the opinion is unassailable for a judge who regularly performs marriages  as a mandatory part of his or her job. A judge who is not so required, presumably, can choose not to perform any marriages at all. I bet some judge will challenge the proposition, however, that a  religion-based refusal to perform an optional civil wedding is per se “bias or prejudice.” [Source: Legal Ethics in Motion]

2. Welcome to my world...This week I am doing several ethics programs, one of which (not in legal ethics) I have presented over many years. Last year, I was told that the 2 hour program I had been presenting to the group only needed to be 90 minutes, so the materials I prepared and submitted indeed covered that amount of time, as did my presentation.  This year, I again prepared for 90 minutes. Now, looking at the conference’s two-day program, I see that my seminar is listed in the program as two hours again. That’s a mistake, but it’s too late to correct it: the attendees plan on getting professional credit. So what is my most ethical response? I could…a) stretch the material to two hours, but that’s a 30 minute stretch. b) At my own expense, create an additional 30 minutes of material, copy the materials, distribute them, and never mention that the conference manager, my long-time contact, screwed up. c) Use this crisis as leverage to negotiate a supplement to my fee for the necessary upgrade. d) End after 90 minutes, tell the attendees why, and suggest that they take up the matter of the missing credit with the conference organizers. e) Do the upgrade, present it, and then bill the conference for my time. Continue reading

Ethics Quiz: The Improper Jury Instruction

At least a dozen Pennsylvania murder convictions may be reversed because Judge Renee Cardwell Hughes included this description of reasonable doubt to instruct her juries:

“Each one of you has someone in your life who’s absolutely precious to you. If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion. You may even ask for a third opinion. You’re probably going to research the condition, research the protocol. What’s the surgery about? How does it work? You’re going to do everything you can to get as much information as you can. You’re going to call everybody you know in medicine: What do you know? What have you heard? Tell me where to go. But at some point the question will be called. If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.”

U.S. District Judge Gerald McHugh ordered a new trial for a man convicted following this instruction, and Hughes may have used it in 50 cases.

This is why I am making this an ethics quiz: I have no idea why the instruction is wrong, or confusing. I’ve read McHugh’s opinion, and I still don’t understand what the alleged problem is, unless this judge just doesn’t want to anyone convicted. (He’s an Obama appointment, but I’m sure that has nothing to do with anything, for Chief Justice Roberts tells us so). The decision is here, and this the judge’s reasoning: Continue reading

On Chief Justice Roberts’ “Rebuke” Of President Trump

What Chief Justice Roberts said:

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”

What prompted his comment: After federal judge Jon Tigar of the U.S. District Court for the Northern District of California temporarily blocked the Trump administration from denying asylum to migrants who enter the U.S. illegally, the President said that the decision was a “disgrace,” adding,

“Because every case, no matter where it is, they file it — practically, I mean practically — for all intents and purposes — they file it in what’s called the 9th Circuit. This was an Obama judge. And I’ll tell you what, it’s not going to happen like this anymore. Everybody that wants to sue the United States, they file their case in — almost — they file their case in the 9th Circuit. And it means an automatic loss no matter what you do, no matter how good your case is. And the 9th Circuit is really something we have to take a look at because it’s — because it’s not fair. People should not be allowed to immediately run to this very friendly circuit and file their case. And you people know better than anybody what’s happening. It’s a disgrace. In my opinion, it’s a disgrace what happens with the 9th Circuit. We will win that case in the Supreme Court of the United States.”

This was—I don’t think it’s unfair to characterize it as “gleefully”—gleefully reported as a rare rebuke of the President by a Chief Justice.

Notes: Continue reading

Thanksgiving Week Launch Ethics Warm-Up, 11/19/18: Turkeys

Good Morning.

1. This is weird. The Florida Supreme Court released a long-awaited decision concerning whether a judge’s Facebook friendship with an attorney should be  grounds for disqualification if the attorney is arguing a case before that judge. The 4-3 opinion holds that:

In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification. 

I could not disagree more. A friend request from a judge is inherently coercive, and creates pressure on the lawyer to accept. Who wants to tell a judge that he doesn’t want to be his friend? Other bar associations and courts have held that it is improper for judges and lawyers to “friend” each other if there is any chance that the judge will be presiding over the lawyer’s cases, and that is the wiser rule. My own preference would be for judges to stay off social media entirely, except for close friends and family. They can only get in trouble there.

2. And this is much weirder…Apparently an app, ‘Santa Call New 2018,’ briefly available for download at the Amazon Children’s Store, would place a call to “Santa”when kids pressed the ‘call’ button, and Jolly Saint Nick would reply, “Hello there. Can you hear me, children? In five nights, if you’re free, I will look for you, I will find you, and I will kill you.”

Amazon is investigating.

Happy Holidays! Continue reading