And The Trayvon Martin-George Zimmerman/ George Floyd/ Kyle Rittenhouse Ethics Train Wreck Rolls On…..

Prosecutor-square

In the tricky practice of ethics train wreck taxonomy, placing the Rittenhouse trial in the proper category is a challenge. Is the Tale of the Gun-toting Teen its own media bias and activist -fueled social and legal disaster, or is it just an extension of another?

I lean toward assigning this fiasco to the latter category, making it just one more extension of the Trayvon Martin-George Zimmerman Ethics Train Wreck, which eventually begat the George Floyd Freakout, which in turn led to the contrived outrage over the police shooting of Jacob Blake that spat out Rittenhouse’s unhelpful improvisation. After all, Martin, Floyd and Blake all were episodes that had nothing to do with race but that were hyped into divisive racial controversies and trials by irresponsible demagogues, protesters, politicians and reporters.

What I especially like about attributing all of this societal wreckage into a single ethics train wreck is that it demonstrates just how disastrous President Obama’s inflammatory comments equating Martin to “his son” were—as Ethics Alarms pointed out at the time. Maybe if the blame is squarely placed at the metaphorical fish head, Presidents will stop shooting off their mouths like that. (President Biden, do recall, falsely called Rittenhouse a white supremacist.)

This is all prelude to pointing out what a projectile vomit debacle yesterday’s closing arguments were. Both the prosecution and the defense stomped all over proper criminal trial practice and professional ethics.

For the prosecution…

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Ethics Pre-Daylight Losing Time Fallback, 11/6/202: So?…Go!…Oops! And More

Fall back

At this point in U.S. history, there is no justification whatsoever for not having daylight savings time year-round. The failure of Congress to kill Ben Franklin’s anachronistic brainstorm is pure cowardice and incompetence.

1. So? The NRA Foundation has twice paid attorney David Kopel, a Second Amendment activist, to write pro-gun rights amicus briefs in Supreme Court cases, according to a hacked document released last week. Since 2019, Kopel has submitted two briefs backing an NRA affiliate in cases before the court, including one involving New York’s ban on carrying licensed guns in public. The briefs did not disclose the source of funding, which is being condemned as unethical by the news media and the usual NRA bashers. “Attorneys who author these briefs must disclose whether they’ve taken money from either side to deliver a filing,” one source says.

Well, first of all, an amicus brief succeeds or fails based on its arguments, and who writes it or funds it should be irrelevant. This would be, at worst, a technical violation. However, the applicable rule in the SCOTUS amicus brief memo does not support the description above. “Rule 37.6 Disclosures” states,

“The first footnote on the first page of text of an amicus brief must include certain disclosures concerning contributions to the brief….It should indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief. It should also identify every person other than the amicus, its members or counsel, who made such a monetary contribution; the Clerk’s Office views it as better practice to state explicitly that no such contributions were made if this is in fact true.”

This is astoundingly sloppy drafting, especially for the Supreme Court. “Must” and “should” are terms of art. “Must,” like “shall,” means some action is mandatory; “should” means that something is best practice, but not absolutely required. When two “shoulds” follow a “must,” it is impossible to determine what’s mandatory and what isn’t.

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If This Post Seems Like Déjà Vu, There’s A Good Reason: The Texas Law Clerk-Prosecutor [Update]

Justice scales bad

UPDATE: “I don’t understand how this could happen. Since it obviously can, I wonder how many other outrageous conflicts of interest are rotting the justice system while nobody is paying attention.”

That’s how I started this post when I wrote it yesterday. Here’s how I ended this post, from May 17, just four months ago: “…the fact that something like this could happen at all, and for so many years, should have ethics alarms sounding throughout the justice system, and not only in Texas.”

This is because the two posts are about exactly the same episode. The similarities didn’t ring a bell with me at all yesterday. A new appellate court opinion related to the same outrageous Texas conflict of interest breach came down this month, so I treated the whole episode as new. It took commenter Rich in CT’s note to alert me. (Thanks Rich.) So here are my thoughts while banging my head on my desk:

  • I apologize. It’s not as if there aren’t really new and horrible ethics stories to consider, especially in the law and the justice system. It’s OK if I waste my time, but its inexcusable to waste yours.
  • I like the first post better.
  • Silver lining: at least the posts don’t contradict each other.
  • The association of legal ethicists I belong to scooped the ABA on this one, discussing the prosecutor’s conduct long before the legal press caught up to it. One more reason to renew my membership.
  • I could write that this scandal is so outrageous that it is worthy of two posts, and maybe more. It is, but that doesn’t excuse the fact that I’m an idiot.
  • I think this has happened to me once before. But what do I know?

Once again, I’m sorry.

***

The Texas Court of Criminal Appeals has overturned the 2003 conviction and death sentence of Clinton Lee Young in a Sept. 22 opinion. Why? Oh, just one of those technicalities: on of the prosecutors in the case was moonlighting as a a clerk for the judge in the trial the trial and who considered the the convicted man’s habeas application. That’s all.

WHAT?????

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Still Not Scared? How About THIS…?

During a closed meeting on this week, Attorney General Merrick Garland met with 35 state supreme court chief justices to urge their cooperation on limiting evictions. Garland praised the Michigan Supreme Court for giving tenants more time to apply for rental assistance by directing courts to stay eviction proceedings for up to 45 days. The AG also saluted the Texas Supreme Court for helping tenants facing lawsuits by sending them notices with assistance options.

The 35 justices should not have accepted Garland’s invitation (or was it a command?) Those who did accept should have ostentatiously walked out as soon as his purpose became clear. To call the meeting inappropriate is itself inappropriate: this was a straight up violation of the separation of powers, and a breach of professional ethics for everyone involved. Garland works for the President: he’s part of the executive branch. He’s also a litigant or a potential one in the matter he was discussing. The is an ex parte communication, as he well knows.

For the White House’s agents to strong-arm, or attempt to, members of the judiciary to allow the President’s party to pursue an unconstitutional policy is one more step to undo the structure of American democracy. This is a pure IIPTDXTTNMIAFB (“Imagine if President Trump did X that the news media is accepting from Biden.”). Creeping autocracy! Democrats and their puppet media would scream. Defying democratic traditions and weakening institutions! Except, you see, Donald Trump never did anything like this, and if he did, I assume all those good Democrats and progressives among the justices would have used the opportunity to call for impeachment, and the Republican chief justices, having respect for the Constitution, would refuse to attend.

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A Scandal That Compels The Question: If This Can Happen, What Other Ethics Rot Lurks In The Justice System?

Texas attorney Weldon Ralph Petty Jr was a busy guy at the Midland County courthouse. By day he appeared before judges as an assistant district attorney. By night, he worked as a law clerk for some of the same judges, sometimes advising them regarding the criminal cases he was prosecuting. This went on for more than a decade.

You don’t have to be a legal ethics whiz to figure out that such conduct isn’t ethical. Prosecutors are barred from privately communicating with judges about cases or matters even indirectly related to their cases. Judges and their clerks are forbidden from disclosing the discussions and in chambers considerations regarding cases to prosecutors or defense attorneys.

Thus Petty, 78, was flagrantly violating ethics rules by simultaneously acting as a prosecutor and a paid adviser to supposedly impartial judges, who were also breaching judicial ethics to a spectacular degree by allowing him to do so. A February story published by USA Today first reported that Petty was paid by judges as a clerk in at least 350 cases from 2001 until his retirement as an assistant district attorney in mid-2019. Seventy-three defendants, maybe more, that Petty prosecuted are in prison. A court opinion issued April 28 calls for overturning Midland County’s only death penalty case due to Petty’s prosecutorial misconduct and the judge’s failure to recuse himself, so Clinton Lee Young, who has been on death row since Petty prosecuted him in 2003, will get a new trial.

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Ethics Footnotes, 5/11/21: Misremember The Alamo, and Other Alarming Things That Could Never Happen Here

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1. The glorious defeat of the Alamo by that champion of diversity, General Santa Anna! The San Antonio Express-News reports that a local activist and university professor, Mario Salas, who has taught African American studies and somehow ended up on the city’s historical commission (though he is not a historian), is claiming that Santa Anna’s army in 1836, the one that slaughtered the defenders of the Alamo, had an all black regiment that has been erased from history. The theory seems to be that if the Mexican dictator had an all-black regiment, he’s not the villain in the Alamo story, he’s the tragic hero: a woke dictator who opposed slavery and fought against the white supremacist Alamo defenders. Like most of the historical revisionism designed to smear American history and its heroes, this requires ignoring a lot of facts.

The Texas Revolution was part of a much wider war that engulfed Mexico at the same time, not a rebellion based on slavery and race. From much of northern Mexico and including Texas as well as states as far from Texas as Yucatan, the war’s primary issue was Santa Anna’s betrayal of the federalists and his abrogation of the 1824 Mexican constitution when he sought absolute dictatorial power. He abolished state legislatures and redrew state boundaries into military districts. His favored treatment of those who opposed him was to execute whole regions. Keeping slavery in Texas was indeed a bone of contention among the mostly Southerners who settled the region, but non-slave states in Mexico were rebelling as well.

Santa Anna would have been a villain if all his soldiers were black.

2. Oh! The defendant deserved to be attacked by the judge! Chief Magistrate Cary Hays III of Crawford County, Georgia “physically assaulted an inmate while the inmate was handcuffed, shackled at the feet, and accompanied by a law enforcement officer,” according to an ethics complaint. This is officially an allegation, but there is a video, and there were plenty of witnesses.

On December 2020, the inmate began cursing at Judge Hays and continued to do so as he was led out of the conference room where his bond hearing took place. Judge Hays “verbally engaged the inmate,” who cursed at Hays again. Hays followed the inmate into the hallway, grabbed him and pushed him into and up against a wall. The inmate did not physically threaten Judge Hays, attempt to escape or flee from custody.

Judge Hays’ defense? He says he didn’t hurt the guy, and if the video had sound and included what the inmate called him, his actions would be considered justified.

No, Your Honor, they wouldn’t.

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Last Gasp Ethics, New Year’s Eve 2020

Happy New Year, Everybody!

1. A late entry in the “Most Unethical Lawyer of 2020” competition! McGinnis E. Hatfield was stripped of his license to practice law by the West Virginia Supreme Court. What did he do? Well, this section of a transcript of his conversation with a female client explains things pretty well:

Female: “I thought like when we first started out, I was just going to pay you. I didn’t know that you wanted sex out of the whole thing.”

Hatfield: “Well, I’d have to charge you like $1,500 bucks. You don’t have $1,500, do you?”

Female: “No.”

Hatfield “So come on out here. Just come. What time do you want to come?… [I]t’s just not going to work unless you do what I say.”

Female: “What do you want me to do?”

Hatfield: “… “Well, I want you to let me eat your pussy, and then I want you to let – I want you to suck my dick, and then, you know, I just have to – I’m as straightforward as I can be. And if you don’t want to do that, then fine. I don’t have any- I like you. And if you don’t want to do that, then we’ll just have to call it off.”

Female: “Is that not – all right. That’s fine. Whatever.”

Hatfield: “Is that okay?”

Female: “I mean no, not really because I’m not a whore.”

Hatfield: ” … And like I said, if you won’t want to do that, then that’s fine by me. I wish you luck. And if you don’t want to do that, then I’m not going to try to represent you. So that’s a benefit for you. And I’ll give you some money, too[.]”… You know, I’m shooting straight with you. I told you from the beginning that sex was important to me. I want some now. Nobody’s tried to trick you. And it would be safe, too. But anyway, if you don’t want to do it, that’s fine by me, honey, but you’ll have to get somebody to help you with your divorce, too.”

Female: “Okay, That’s fine.

Of course, it’s not fine. Lawyers are prohibited from having sex with clients in most jurisdictions. Lawyers cannot encourage individuals, including clients, to commit a crime. Mr. Hatfield compounded his problems when he flunked the easiest part of a disciplinary inquiry, telling the judge who asked Hatfield whether in retrospect, he found his behavior inappropriate or unethical,

“I think my conduct in this whole situation is human. And that’s the only defense I’m offering. Lord knows, we all need that. So that’s as far as I’ll go with that.”

The judge tried again, asking, “Are you remorseful?” Hatfield replied, “No. I have no remorse. I feel like I’ve been victimized.”

What an idiot.

It put me in mind of the Steven Wright line, “How did the fool and his money get together in the first place?”

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Saturday Ethics Respite Before Holiday Madness, 11/21/2020: The Justice, The Pope, The Scouts, And The Chickens

This is annually the last day before everything goes bananas in Marshall World. From now until New Years, its like the Nantucket Sleigh ride, not quite as dangerous, but not as much fun either. November 22 is the anniversary of Kennedy’s assassination, my generation’s 9-11. It changed everything. The 23rd is my anniversary, #40, which my son is sure to forget and my wife, for various reasons, doesn’t like to celebrate. Next is Thanksgiving, always depressing now because what was once a vibrant table of 7-15 relatives and friends is now at most four and a lot of wistfulness. My birthday comes on December 1, forever tainted because my perverse father chose the date to die on, and fate chose me to find his body. Then it’s the anxious run-up to the Christmas holidays, which always follows in the deadest period for ProEthics, meaning that we are counting pennies at the one time of the year we don’t want to be. (There is also the annual tree drama, since both my family and Grace’s were addicted to real, meticulously decorated trees, and we have a 20 foot ceiling which makes any tree less than 8 feet look silly. The thing takes about 2500 lights, which I have the responsibility of hanging, and then over a hundred mostly unique ornaments, beginning with the yarn Santa my mother made for Jack Sr. and Eleanor’s first scraggly tree in their new Cape Cod-style home in Arlington, Massachusetts. It was 1948. Getting our tree up and decorated to family standards takes about twelve hours and multiple First Degree prickle wounds. I can’t wait.

On the plus side, I’ll finally finish the Ethics Alarms Ethics Guide to “Miracle on 42nd Street”…

1. No, I’m not surprised that the Catholic Church sexual abuse cover-up went straight to the top. Are you? I’m not even disappointed. This is what organizations and institutions do: they protect themselves, and sacrifice the victims of their misconduct.

The Vatican this month released a report that showed Pope John Paul’s role blame in allowing the disgraced former prelate Theodore E. McCarrick to continue in the Church’s hierarchy.

The investigation, commissioned by Pope Francis, who canonized John Paul in 2014, reveals how the Pope ignored a wave of accusations of sexual abuse and pedophilia against McCarrick. Three popes participated in the cover-up, but one of them, John Paul, has been canonized. So Catholic saints are now accessories to rape.

A reversal of the canonization, which may never have happened, is unlikely, but it may slow the rush to canonize future popes.

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High Noon Ethics Shoot-Out, 10/21/2020: Religious Bigotry Vs Anti-Gay Bigotry! “Whitewashing” Vs Anti-Semitism! Google Vs Trust!

As you may (and should) know, the classic Western “High Noon” was and is regarded by some conservatives as anti-American. I think it is, as excellent as it is. The ending, where the heroic law man (played by Gary Cooper in an Academy Award-winning performance) throws his star in the dirt in disgust (imitated by “Dirty Harry” for very different reasons in that conservative film years later), is widely seen as a rejection of American society as hypocritical. (The fact that the screenwriter, Carl Foreman, was a Communist doesn’t help.)

My favorite scene in the movie, where Cooper begs the church congregation to help, plays like a “Twilight Zone” episode, with the whole town rationalizing furiously to avoid helping the desperate law man minutes away from having to face, alone, vengeful thugs determined to kill him. (The whole scene is not on YouTube; I searched.) “Rio Bravo,” one of the best John Wayne Westerns and a personal favorite, was devised by director Howard Hawks as a direct rebuke of the selfish and craven America “High Noon” posits. In the Duke’s movie, the lawman, Wayne, constantly rejects the offers of help he receives, though he knows hired killers are massing to free his prisoner. Yet people go out of their way, at great personal risk, to help him anyway, time after time. “High Noon” is a better movie (maybe), but “Rio Bravo” is a fairer depiction of American values and history.

1. This is why I tell lawyers and government employees that it’s unethical to use Google for professional communication and client matters. Mac programmer Jeff Johnson has discovered that if you set Google Chrome to eliminate all website cookies and site data when you close the browser, the data remains un-erased for YouTube and Google itself.

What a coinkydink!

“Perhaps this is just a Google Chrome bug, not intentional behavior, but the question is why it only affects Google sites, not non-Google sites,” Johnson says. “I’ve tested using the latest Google Chrome version 86.0.4240.75 for macOS, but this behavior was also happening in the previous version of Chrome. I don’t know when it started.”

Bottom line: Don’t trust Google. Like I’ve been saying….

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Friday Evening Ethics Gallimaufry, 7/17/2020: SCOTUS, Di Blasio’s Delusion, And DiMaggio’s Luck

Speaking of gallimaufry, “A Heavy Dragoon” is one of the best Gilbert and Sullivan “list” songs, but you seldom hear it. Erudite is the listener who can identify all the historical figured named! The song is from “Patience,” the firs show I ever directed, and still one of my favorites. The singer in the clip above, Darrell Fancourt, played the part of the Mikado more times than anyone, and even dropped dead while playing the role.

1. In baseball history, it’s Moral Luck Day. On July 17, 1941, New York Yankees center fielder Joe DiMaggio didn’t get a hit against the Cleveland Indians, in great part due to a pait of great plays by Cleveland third baseman Ken Keltner, finally ending his historic 56-game hitting streak, the longest in MLB history then and now. Largely on the basis of the streak, though it helped that the Yankees won the pennant, DiMaggio was awarded the American League MVP award, despite the fact that Boston’s Ted Williams hit .406 that season, nearly 50 points higher than DiMaggio. In fact, Williams outhit the Yankee during the same 56-game period.

The end of The Yankee Clipper’s amazing streak was luck, and the streak itself was luck. All hitting streaks are. Baseball is the  sport most governed by random chance, especially hitting: a well-hit ball can become an out if it happens to be hit within a fielder’s reach, and a ball barely touched by the bat can dribble down the  baseline for a cheap hit. DiMaggio was undeniably a great hitter, but many players in baseball history were better; he just was lucky—good, but lucky—for a longer stretch of games than anyone else. Yet of all his many achievements, the 56 game streak in 1941 is the first thing baseball fans cite when assessing  the greatness of Joltin’ Joe DiMaggio.

2. It isn’t what it is! Yesterday, New York Mayor Bill de Blasio said that releasing prisoners onto the city’s streets to avoid their infection by the Wuhan virus  in jail had made New York City safer, saying, “We now have fewer people in our jails than any time since World War II and we are safer for it and better for it.”  De Blasio’s office announced  that more than 1,500 inmates had been released from city jails in three weeks, reducing the number of prisoners to its lowest level in 70 years.

The problem is that his assertion is ludicrous. De Blasio’s boast that the prisoner release made the city safer defied  the evidence of the results of the prisoner release the NYC Bail reform law required in January 2020. Of those who committed felonies that were no longer eligible for bail, 19.5% were re-arrested at least once after an initial non-bail eligible felony arrest, 1,798 of 9,227 individuals were re-arrested. 2020 recidivism resulted in 1,452  major crime arrests (murder, non-negligent manslaughter, rape, robbery, felony assault, burglary, grand larceny, and grand larceny of a vehicle) vs. 681 in 2019. Meanwhile,  shootings in the city were up 205% in June  compared to a year earlier. Continue reading