More E-Mail Deception From State: Does Anybody Care? Well, I Do. And You?

August 25, 2015 / Jack Marshall / 16 Comments

Another day, another Hillary advisor, another scandal…

The private server of Hillary Clinton isn’t the only intrigue going on the should make us wonder just how corrupt our leaders and aspiring leaders are. There has been a new development involving another set of emails that should cause public outrage and alarm…if the news media had the integrity to report on it.

In 2012, Gawker filed a Freedom of Information Act (FOIA) request asking the State Department to produce e-mails related to Deputy Assistant Secretary of State Philippe Reines (now a top Hillary Clinton adviser) and his contacts with thirty-three listed media outlets. Reines was involved in an intemperate email exchange with Gawker journalist Michael Hastings in which he told Hastings to “fuck off;” naturally Gawker, being Gawker, wanted to dig up dirt on him.

[It’s a side issue, but any high ranking government official that tells any journalist to “fuck off” should be forced to apologize and be punished or sacked. This just one more example of the Obama Administration’s aversion to accountability and management competence.]

The U.S. State Department officially stated in 2013 that there were no such emails, reporting that “After a thorough search . . . no records responsive to your request were located.”

Last week, after a federal judge demanded a“court-ordered status report,” Justice Department lawyers, reporting on behalf of the State Department, announced that the previous statement was a teeny bit off. The State Department had found of “5.5 gigabytes of data containing 81,159 emails of varying length” sent or received by Reines, of which about 17,855, or 22%, were relevant to the initial FOIA request.

Wait…what?? Continue reading →

From The “I Told You So” Files: Judge Kopf Finally Decides To “STFU”

August 21, 2015August 21, 2015 / Jack Marshall / 1 Comment

There go de judge!

Last year, I wrote a post about the intemperate blogging of Judge Richard G. Kopf, a senior district court judge on the U.S. District Court for the District of Nebraska. Actually intemperate doesn’t quite describe it: in his criticism of the Supreme Court’s decision in the Hobby Lobby case (the Ethics Alarms discussion is here) he wrote, “As the kids say, it is time for the Court to stfu” and linked to the Urban Dictionary so his less cool readers would take his meaning. I wrote:

That he did this on his blog, Hercules and the Umpire, doesn’t matter. It was in print, in public, and he’s a Federal judge. The obscenity came in the context of Judge Kopf’s criticism of the recent Hobby Lobby decision, but the context doesn’t matter either. There is no context in which it would be appropriate, judicial and ethical for a member of the judiciary to tell the Supreme Court of the United States to shut the fuck up. Nor does it matter that he used the texting code stfu rather than spelling out the words.

For a Federal judge to be openly disrespectful, uncivil and abusive to the top of the nation’s judicial branch is an assault on the rule of law, and undermines public respect for our institutions…. If the objective is to speed a complete breakdown in public respect for our institutions, divisive partisans like Kopf and Wilson are doing a bang-up job. Neither they, nor you, nor I will like where this will lead if our leaders and officials don’t come to their senses.

This post, of all posts (I don’t think my position is rationally assailable, frankly) managed to get three commenters banned from the blog, essentially by 1) arguing that the Roberts Court doesn’t deserve the usual respect due to any court, and 2) telling me to “stfu.” All were Judge Kopf acolytes who weren’t going to stay here to contribute anything positive, just uncivil, arrogant progressive lawyers who the judge-blogger had trained well.

Last month, a year after his obscene riff on SCOTUS, Kopf slipped again, writing that “Senator Ted Cruz is not fit to be President.” The post wasn’t obscene; in fact it was funny: Kopf, who had a year earlier condemned the Supreme Court for bias, argued that Cruz was not fit to be President because…

“Any rational person understands that we must accept decisions we like and decisions we don’t like when we ask the highest Court in the land to decide difficult hot button questions for an entire country. Judicial retention elections are fine for Nebraska and all the other states that have developed unique and parochial histories and traditions. However, we are talking about a federal Constitution–one that protects and covers 320 million people from Maine to Hawaii. Given the fractious divisions in our country that exist now (and many times in the past) and the obvious geographical fissures among the states (Red State/Blue State), judicial retention elections, fueled by whether a majority likes or dislikes particular Supreme Court rulings at a given point in time, is a formula for chaos and for further dividing our country into factions, a well placed fear held by the Founders.”

Wait…who is this guy? Surely he bears no relation to the sneering, potty-mouthed anti-Supreme Court critic I wrote about the last time? Continue reading →

Unethical Quote of the Month: Justice Antonin Scalia

June 26, 2015June 26, 2015 / Jack Marshall / 41 Comments

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

——U.S. Supreme Court Justice Scalia, excoriating his colleague, Justice Kennedy, who was the fifth vote in the majority of SCOTUS’s ruling today, authored by Kennedy, that same-sex marriage was a Constitutional right no state could deny. Scalia filed an angry and intemperate dissent, low-lighted by this comment in a footnote.

Wrote Prof. Stephen Gillers, legal ethicist:

“How after this can Kennedy work with him? Scalia has himself “descended” from the manner of argument found in opinions of John Marshall and Joseph Story to the invective and mockery of the Internet. Lawyers have been chastised for less derisive comments in briefs. Yet here we have it from our Supreme Court. Scalia sets a bad example that will harm civility in lower courts and at the bar.”

Exactly.

The rest of Scalia’s dissent is hardly more restrained, either.

You can read the opinion and dissents in Obergefell v. Hodges here.

UPDATE: Here’s a screenshot of another selection, courtesy of Slate:

Arguing with the majority’s wisdom and legal analysis is one thing, mocking a Justice’s writing style is quite another—unprofessional, uncollegial and below-the belt. Yes, Nino is a much better writer than Kennedy, but belittling his efforts shows neither proper judicial temperament nor appropriate respect for the Court itself. Some commenters excuse this because they disagree with the ruling: Irrelevant. Check your rationalizations, especially #2. The “They’re Just as Bad” Excuse, or “They had it coming.”

Statutory Rape Case Study: The Ethical Necessity Of Prosecutorial Discretion

June 17, 2015June 17, 2015 / Jack Marshall / 31 Comments

Reason tells the troubling story of computer science majoring college student Zach Anderson, 19, who made the acquaintance of a girl on the “Hot or Not?” app. He was in Indiana, she was in Michigan, a short drive away. They arranged a sexual liaison, a one-time hook-up. The girl lied about her age, though, in person and on her website profile: she was really just 14, just like innocent Larry “Pinto” Kroger’s seductive girl friend in “Animal House” (shown above in her last-second moment of candor*) and thus unable to legally consent to sex. Unlike Pinto, Zach’s fate wasn’t amusing. He was arrested and tried.

The girl admitted that she lied about her age, and her parents didn’t blame Zach. They asked that the case be dropped. It wasn’t. Without a defense on the facts of the case, Zach made a plea bargain, pleading guilty in exchange for the prosecutor’s promise not to oppose his request for leniency under a Michigan provision for first-time sex offenders under 21 that allows them to avoid off the sex offender registry. The prosecutor then double-crossed him, technically not opposing leniency but reminding the judge that he had rejected such appeals to the leniency provision in the past. (Yes, that is opposing it. Yes, that’s unethical. Yes, the prosecutor is an asshole.)

Then Berrien County District Court Judge Dennis Wiley sentenced Anderson to 90 days in jail and placed him on the Sex Offender Registry for 25 years, lecturing him: Continue reading →

Choosing Race Over Ethics, Fairness, Common Sense, Duty And Our Children’s Future: “Disparate Impact” And The New York Teachers Exam Decision

June 7, 2015June 7, 2015 / Jack Marshall / 17 Comments

Fine. If you can teach, you can teach. I don’t care that you’re blue.

How much, I wonder, will American society be willing to distort its values, reality and duties to the public in order to accommodate false standards of racial justice? How many innocent people will be harmed before this destructive trend dissolves as the truth suddenly dawns, and we ask, “What were we thinking?” If a computer program was designed to invent the perfect example of a court decision that shows how divorced public policy regarding race has become from anything approaching logic, it could not come up with better than this.

Judge Kimba M. Wood (Remember her?) of the Federal District Court in Manhattan ruled last week that the New York’s teachers exam was racially discriminatory, and the results had to be thrown out. The exam, the second incarnation of the Liberal Arts and Sciences Test, called the LAST-2, was administered to New York teaching candidates from 2004 through 2012 and was designed to test an applicant’s knowledge of liberal arts and science. Now, the exam was not found discriminatory because anyone could show, or suggested, that certain questions favored one race’s experience over the other. It was not found discriminatory like those infamous Jim Crow exams, or because experts were able to show how African Americans were uniquely unable to do well on particular questions for identifiable reasons. No, the test was found to be discriminatory because minority teaching candidates failed at a higher rate than white candidates, and that’s the only reason.

In order to eliminate the gap, those questions on which minority applicants did significantly worse will have to be eliminated. Wrote Wood:

“Instead of beginning with ascertaining the job tasks of New York teachers, the two LAST examinations began with the premise that all New York teachers should be required to demonstrate an understanding of the liberal arts.”

We are supposed to immediately grasp that this is a bad thing. Continue reading →

The Trooper,The Law Clerk, And The Deer

June 6, 2015 / Jack Marshall / 12 Comments

This was all YOUR fault…

Prof. Jonathan Turley would make this an ethics quiz, but not me.

He is troubled that a law clerk ended up an ex-law clerk after publishing a gratuitously nasty post on Facebook expressing her unseemly lack of sympathy for a New Jersey state trooper who died when his car collided with a deer. (Another trooper traveling with him was injured.) Turley shares my concern regarding the trend of employers punishing employees for their comments on social media, but in this case, I don’t have any sympathy for the clerk at all.

Responding to other Facebook commenters who expressed sorrow for the dead trooper and called him a hero, Leslie Anderson, who clerked for a News Jersey judge, Middlesex County Superior Court Judge Travis L. Francis, expressed strenuous dissent, writing,

“Not that sad, and certainly not ‘tragic,’ Troopers were probably traveling at a dangerously high speed as per usual. Totally preventable. At least they didn’t take any of the citizens they were sworn to serve and protect with them…The ‘victim’s’ employment as a state trooper is irrelevant to the circumstances, other than the fact that he injured a fellow trooper and destroyed state property as a result of his recklessness. He wasn’t running into a burning building or otherwise acting within the course of his employment at the time of the accident. The outcry and ‘thank yous’ are absurd, nonsensical, and completely unwarranted. There are people in this country and around the world dying for much less. There is nothing ‘tragic’ about this. Get over yourselves and your sense of entitlement, people . . .

Nonetheless, I agree that it is sad and heart wrenching for the family members left to suffer the consequences of the Trooper’s recklessness — especially for the deer family who lost a mommy or daddy or baby deer.”

Jerk. Continue reading →

Outrageous, Unprofessional, Unethical Judge Michael Cicconetti

June 4, 2015June 4, 2015 / Jack Marshall / 21 Comments

Pepper spray in the face? Uh, that’s not what we mean by “blind justice”…

In Painesville, Ohio, Municipal Court Judge Michael Cicconetti decreed that Diamond Gaston, tried for assault for pepper-spraying another woman in the face, had to choose between spending a month in jail or getting pepper-sprayed in her face by the victim. Judge Cicconetti—the sly fox—had secretly had the pepper-spray replaced with a saline solution without telling Gaston, who was his victim. In the same week, Cicconetti sentenced a woman who failed to pay a cab driver for a 30 mile trip to the choice of jail time or paying $100 restitution and walking the 30 miles she stole from the cabbie. This got him on all the cable news shows, so obviously it was a great idea.

Law Professor Jonathan Turley was so upset by these absurd sentences (and others he has condemned) that his blog post on the topic is (uncharacteristically) riddled with errors, as if he wrote it while screaming as tears blurred his eyes. Maybe he did. Unlike your host, Turley is usually reserved and understated, but this really got to him. Here: my view is substantially the same as his, so let’s give the professor his say (with a little editing): Continue reading →

Unethical Quote Of The Month: The White House, a.k.a. President Obama

May 27, 2015 / Jack Marshall / 31 Comments

“Today, two judges of the Fifth Circuit chose to misrepresent the facts and the law. The president’s actions were designed to bring greater accountability to our broken immigration system, grow the economy and keep our communities safe. They are squarely within the bounds of his authority, and they are the right thing to do for the country.”

—-White House spokeswoman, Brandi Hoffine, relaying the White House’s response to the Fifth Circuit’s refusal to lift the injunction blocking President Obama’s dubious plan to defer deportations for millions of undocumented immigrants, using executive order rather than legislation.

The bottomless pit of miserable White House tactics…

There appear to be no depths of unethical rhetoric to which the Obama White House is not willing to stoop for political gain.

The wording of the White House statement is unethical: despicable, irresponsible, and offensive to the judicial system, as well as beneath the dignity of the Presidency.

Well, of most Presidencies, anyway.

The President is free, of course, to disagree with a court decision, and may say so. To imply, however, that the two judges who formed the majority in this ruling did not make their decision fairly and legitimately, but rather “chose” to misrepresent facts and law—essentially accusing them of dishonesty, is unethical to the bone. There is even an ABA Rule of Professional Conduct prohibiting such a comment as undermining “public confidence in the administration of justice.” The President is not only a lawyer, but a former law professor. He should be ashamed of himself, and we should be ashamed of him. Lawyers have been suspended for making similar statements, and he is President of the United States, whose statements are infinitely more harmful. Continue reading →

Sliding UP The Slippery Slope: NO To Forced Sterilization, And A Belated NO To Forced Vasectomies Too

March 30, 2015March 30, 2015 / Jack Marshall / 20 Comments

“OK, now this is entirely your free choice…”

This has turned into Revisiting Old Posts Day on Ethics Alarms.

Last July, I posted an Ethics Quiz regarding a Virginia judge’s sentence offering a profligate and irresponsible serial father to choice between an extra four years in jail and a vasectomy at his own expense. After asking readers whether they thought the sentence was ethical, especially in light of the state’s ugly history of forced sterilizations, I demurred, writing,

I am not ready to make a call on this one. Since neglected children often become the responsibility of taxpayers, the argument that the state has no legitimate interest in regulating profligate reproduction by irresponsible parents falls flat. Is taking away someone’s ability to have more children (after seven) really a greater intrusion on his freedom than locking him up? Yet this sentence seems to cross lines that government should cross with caution, if at all. I’m not sorry that Herald won’t be inflicting more of his line on us. I am uneasy, however, with the way this result came about.

I am now ready to make an ethics call in the quiz in light of this news report: Continue reading →

“Good Luck In Hell”: Jury Abuse Ethics

March 14, 2015March 18, 2015 / Jack Marshall / 6 Comments

It’s not nice to be mean to juries.

More than that, it’s democracy self-abuse. Juries are the fractals of true democracy, played a crucial role in the intellectual germination of our founding documents and are as important to the United States’ ideals and core beliefs as any institution. Citizens contribute their time—okay, some need a little persuading—to take on the massive responsibility of life altering decisions, and despite their fallibility (and look at the rest of the government!) jurors deserve honor and respect.

For lawyers and judges to behave otherwise is not just foolish, it is prohibited by their respective professional ethics rules. Charles Guiteau, who shot President Garfield, was briefly a lawyer. He used to climb into the jury box to yell at jurors. That got him kicked out of the profession, so he moved on to shooting Presidents, which he was better at.

It’s even unethical to berate a former juror, as small firm New York attorney Frank Panetta of Massimo & Panetta discovered when all of his ethics alarms malfunctioned simultaneously and he sent off the following masterpiece to Lauren Curry, the senior partner in another firm. Panetta is still steamed about a case he lost when a jury found against his client four years ago, and he blames Curry, who served as his jury’s foreperson. He wrote in an Guiteau-like e-mail, and I swear, I’m not making this up: Continue reading →

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