judges

KABOOM!* An Unethical Loophole In The Justice System—And The Supreme Court Just Refused To Remove It

/ Jack Marshall / 13 Comments

Screenshot_loophole

Radley Balko, the libertarian investigative reporter, reports in his Washington Post column on a sentencing anomaly I was blissfully ignorant of before, and was a happier man for it. He writes…

Think the government must convict you of a crime before it can punish you for it? Think again.Most Americans probably believe that the government must first convict you of a crime before it can impose a sentence on you for that crime. This is incorrect: When federal prosecutors throw a bunch of charges at someone but the jury convicts on only some of those charges, a federal judge can still sentence the defendant on the charges for which he was acquitted. In fact, the judge can even consider crimes for which the defendant has never been charged.

Balko was writing about Jones v. United States,  in which the jury found three Washington, D.C.not guilty of a conspiracy to run an “open air” market for large quantities of illegal drugs on the streets of the nation’s capital, convicting them only of selling small quantities of the drugs, a relatively minor offense.  The judge, however—think about this, now—decreed that his sentence could also take into account the conduct that had led to the more serious conspiracy charge —that is, exactly the charges that the jury had acquitted them of—gave the three men sentences ranging from 180 to 225 months, while the crimes they were found guilty of committing would justify something in the range of 33 to 71 months. Continue reading →

No “Stand Your Ground” For Domestic Abuse Victims? Law vs. Ethics Strikes Again!

/ Jack Marshall / 15 Comments

Domestic violenceA hoary statutory destruction debate that hails from the Fifties centered on the simple prohibition, “No Vehicles in the Park.” The question is whether the reasonable and proper interpretation of such a prohibition should rest on the clear meaning of the words alone, or whether the underlying purpose and reasoning behind the rule or law must be taken into account. A tank is a vehicle: does the rule mean that a WW I tank can’t be placed in the park as a memorial? Is a baby stroller a vehicle (the dictionary says yes)? If we accept the literal approach—the school of jurisprudence championed by scholar L.A. Hart that is called legal positivism—we take legal interpretation out the realm of ethics and morality, and give judges only the power to apply laws as written, results be damned. The other approach, more popular with non-lawyers and many judges but not necessarily correct, is identified with Hart’s contemporary Lon Fuller, and called the natural law approach.

This conflict has arisen in intriguing fashion in a South Carolina dispute over the application of that state’s Stand Your Ground law in domestic abuse cases. In 2012, an abusive boyfriend, Eric Lee, dragged Whitlee Jones down a street by her hair. She got away, and Lee returned to the apartment they shared. A 911 call prompted by the hair-dragging spectacle brought a policeman to visit, and Lee put him at ease, saying that all was well.

It wasn’t. Jones, having retrieved her hair weave that didn’t survive the drag through downtown Charleston, returned to the apartment to pack her belongings and move out. As Jones began to leave the apartment, Lee blocked her way, and according to Jones, began to shake her. She pulled out a knife and stabbed him once, and once was enough. Lee died. Jones was arrested for murder. Continue reading →

A Judicial Jumbo!

/ Jack Marshall / 5 Comments

Jumbo

To remind not-so-regular visitors here: a Jumbo is a special Ethics Alarms award for conduct that emulates the gag from the Broadway musical and film “Jumbo,” in which Jimmy Durante, as a circus clown trying to steal an elephant, is caught red-handed by a sheriff, and asked, “Where are you going with that elephant?” “Elephant?  What elephant?,” Jimmy replied.

Carl Knochelmann Jr is candidate for Kenton County Family Court Judge court judge in Kentucky. He also owes $2,886.54 in unpaid child support to the mother of his teenage son. He has been delinquent before: at various times a court has ordered him to pay overdue child support, including $9,632 in 2003. The current $2,886 amount dates back to 2008.

His opponent, seven-year incumbent Kenton County Family Court Judge Chris Mehling, said the back child support shows Knochelmann is unfit for a judgeship responsible for enforcing child support payments, among other things.

Ya think? Although I would imagine that he will wrap up the deadbeat dad vote. Continue reading →

Kansas Politics Ethics Sludge (Cont.): In Taylor v. Kobach, The Court Rules That The Statute Was Violated In Compliance With The Statute…

/ Jack Marshall / 23 Comments

quote-i-have-seen-the-truth-and-it-makes-no-sense-anonymous

I write here often that we must distinguish between law and ethics, and as a lawyer, I am comfortable with the reality that a decision required by the law may be unethical, in that the results may harmful and undermine the broad goal of what a law or laws are supposed to accomplish: a healthy society, a functioning government, a safe and happy public and justice. Just as doctors need to develop emotional armor that allows them to go on practicing medicine when the operation is a success but the patient dies, so must judges learn to move on when interpreting a law as written has an absurd result, and they must allow that result to occur. I understand all that.

I still can’t understand the opinion in Taylor v. Kobach, however.Maybe someone can explain it to me with a straight face. The opinion itself is beyond reproach, clear and unassailable. The problem is that it ignores the Mastodon in the courtroom: the letter that the opinion deems sufficient to meet the requirements of the statute in question embodies a lie, and defeats the intent of the very statute that the court is using to declare the letter valid.

How can judges do that? How can they stand doing that? Continue reading →

The Third Circuit Rejects Judicial Immunity In The Case Of An Unethical One Man Justice System

/ Jack Marshall / 2 Comments

crazy-judgeAs I predicted at the time, many readers became upset at the spectacle of judges declaring other, clearly unethical judges immune from civil suit as a result of the judicial immunity doctrine. They will be cheered, then, by this unusual decision by the Third Circuit in a decidedly odd case out of New Jersey.

The Third U.S. Circuit Court of Appeals ruled that a civil rights suit could process against Municipal Judge Louis DiLeo of Linden, New Jersey, who was not reappointed to his post after the incident sparking the action. The lower court judge had denied DiLeo’s motions to dismiss on the grounds of absolute judicial immunity  the 3rd Circuit agreed, saying that the plaintiff had made  a plausible claim that DiLeo’s actions “went beyond legal error, such that he was no longer functioning in his judicial capacity,” the appeals court said in the its opinion . Continue reading →

Dog Custody Ethics From The Vermont Supreme Court

/ Jack Marshall / 8 Comments
It's a dog's life, whatever THAT means...

It’s a dog’s life, whatever THAT means…

Pet dogs are more than property and less than citizens. When they become surrogate children, as they often do, the legal battles over which member of splitting couples will have custody can become as furious and emotional as anything in “Kramer vs. Kramer.” Now the Vermont Supreme Court has approved a a new approach to these cases, deciding one on the basis of “the best interests of the dog.” Here is the relevant portion of the decision, in the case of Hamet v. Baker: Continue reading →

The Problem In Ferguson Goes Deeper Than Racism…

/ Jack Marshall / 56 Comments
A horror story lies within this map.

A horror story lies within this map.

….and focusing only on race just makes understanding and dealing with the real problems impossible. Nonetheless, activists, the news media and the government intentionally ignore the complexities involved, which collectively define a human tragedy and a failing of U.S. governments at all levels.

Washington Post writer Radley Balko has delivered a shocking, disturbing, depressing and eye-opening investigative report on how small municipalities in St. Louis County operate, and how demographic, political and economic trends inevitably cause the tensions and distrust we saw burst into conflagration in the wake of the Mike Brown shooting. If Balko does not win a Pulitzer for this marvel of reporting and analysis, then the awards should eliminated.

You must read the whole piece here. It’s unethical for a responsible citizen not to; I really believe that.  I was originally going to post some excerpts,but I’m not going to, because I know many will just read them and skip the whole, long report. This is a significant and brave work, and attention must be paid. Continue reading →

Now THIS Is An Unethical Judge…

/ Jack Marshall / 11 Comments

judge_mccree

No, the judge in question is not the Honorable Wade McCree, the handsome devil pictured above, who, you may recall from an earlier post here, recently escaped a suit for damages by the husband of the women he was banging like his gavel during—literally during, in some instances— the gentleman’s trial for not paying spousal support. That unethical judge was removed from the bench and suspended, but also protected from being sued by the principle of judicial immunity.

Ex-judge McCree is a disgrace, but this judge is something else. Judges are, reasonably enough,  required not to break the law themselves, and also to conduct themselves in such a way that the public’s confidence and trust in the judicial system and judges overseeing it are not undermined. I would argue that taking narcissitic selfies like the one above and distributing it shakes such confidence, but you know what an old poopie-head I am about such things. I am confident, however, that I am not being a poopie head when I conclude that the public has reason to have doubts about the, ah, judgment of…

Cuyahoga County Common Pleas Judge Lance Mason, who was removed from his duties after a jury indicted him of felonious assault, kidnapping, child endangering and domestic violence. He was arrested earlier this month after an incident in which he punched his wife in the face several times, bit her and choked her, all while driving on Van Aken Boulevard in Cleveland…. with their children in the backseat!  She was hospitalized with numerous injuries. Thoughts: Continue reading →

The Essence Of Utilitarianism: 9 Out Of 10 Non-Lawyers Will Hate This, But It Is Ethical And Necessary

/ Jack Marshall / 28 Comments
Wait, this doesn't seem proper at all...

Wait, this doesn’t seem proper at all…

In the case of King v McCree, the Sixth Circuit has handed down a decision that affirms the principle of judicial immunity.  The facts are reminiscent of the Gilbert and Sullivan one-act, “Trial by Jury.”

Judge Wade McCree,  presiding over a felony child – support case, conducted a secret sexual relationship with the woman seeking support from the defendant, King. The Michigan Supreme Court both removed Judge McCree from his judgeship and prospectively suspended him without pay for six years just in case Michigan voters—and voters have been known to do such stupid things–re-elect  him if he runs for judge again in November 2014.

The defendant sued the ex-judge, claiming that the judge’s obvious conflict of interest–playing bedroom bingo with the complaining witness while her case was being adjudicated in his court— violated King’s right to due process of law. The district court ruled that Judge McCree was immune from such lawsuits under the doctrine of judicial immunity, and the Sixth Circuit agreed. Continue reading →

Ethics Observations On The Latrez Cummings Sentence

/ Jack Marshall / 18 Comments
"I understand, son. We've all been at that awkward, "just want to beat the old white guy to death" age...."

“I understand, son. We’ve all been at that awkward, “just want to beat the old white guy to death” age….”

Detroit Third Judicial Circuit Judge James Callahan sentenced 19-year-old gang member Latrez Cummings to six months in jail for his participation in the mob beating of Steve Utash, a 54-year-old white man who jumped out of his car to assist a 10-year-old African-American boy after his pick-up truck hit the child. Cummings and at least 20 others on the scene attacked Utash and beat him severely, leaving him with permanent brain damage.

Judge Callahan told Cummings that the lack of a father was what led him to his current plight. “That’s all you have needed in your life, a father, someone to discipline you, someone to beat the hell out of you when you made a mistake,” Callahan lectured Cummings. “Without the guidance of a father, being 19 years of age, I can understand how some of these problems existed in the past.” The judge added that Cummings has suffered without “somebody to beat the hell out of you when you made a mistake.”  With the further rationalization, “We’ve all been 19 years of age, ” Callahan handed down the six month sentence, to be followed by probation.

The prosecutor, to her credit, went nuts. Said Assistant Wayne County Prosecutor Lisa Lindsey: Continue reading →