On Judge Kollar-Kotelly’s Procrustean Attempt To Make Abortion A Constitutional Right

That’s Procrustes portrayed above, in both of his favored acts of mayhem. I checked: I’ve used the term “Procrustean” several times here, but never was kind enough to explain the term’s origins, which is what makes it cool.

Procrustes was the nastiest of the bad guys the mythological Greek hero Theseus encountered on his way to killing the Minotaur in Crete. Procrustes would invite a weary traveler to take refuge for the night, offering him sustenance and a bed—but the bed was a deadly trap. Procrustes guaranteed every guest would fit the bed neatly, but that was because it converted into a rack, stretching anyone who was too short. If a guest was too tall, Procrustes just hacked off enough inches from the feet up to ensure that the bed would fit him, too. Theseus killed the psycho, but the word procrustean eventually entered legal lexicon to describe an argument that illogically squeezed facts or omitted them to make a theory fit the law.

I thought of old Procrustes immediately when I read that Judge Colleen Kollar-Kotelly in the District Court for the District of Columbia suggested after a hearing that the Thirteenth Amendment might have created a right to abortions. Wait, you well might ask, “How could an amendment created specifically to make slavery illegal, passed right after the Civil War, be construed to enshrine abortion as a right?” The short answer is, “It can’t and doesn’t.” The stupid, intellectually dishonest answer, however, is the one that the previously responsible female judge has decided to promote.

When the amendment states, Continue reading

No, Anti-Kavanaugh Obsessives, Attending A Holiday Party Does Not Constitute “An Appearance Of Impropriety” [Corrected]

Ooooh, scary! Politico reported that Justice Brett Kavanaugh attended a private holiday party last week at the home of Matt Schlapp, chairman of the Conservative Political Action Coalition (CPAC). Attendees included Stephen Miller, whose group America First Legal Foundation, it reported, “has interests in cases now pending before the court.”

Bloomberg Law seems to think social engagements over the holidays aree suspicious actions triggering “the appearance of impropriety” prohibitions all judges are told to avoid. They are not. The problem is that now there is a glut of committed ideologues determined to intimidate, neutralize and delegitimatize the Supreme Court, and to those biased critics, virtually anything a conservative justice does appears improper. In Kavanaugh’s case, unsubstantiated juvenile conduct while in high school was cited as sufficiently improper to overshadow his impeccable record as an adult judge.

Attending a party with people who “live, eat, and breathe conservative political action” is either reflective of a level of insensitivity to that development or indifference to it, says Charles Geyh, an Indiana University Maurer School of law professor. “This is the worst possible time for this,” he said. “That development” is the Court being unjustly and disingenuously attacked for legitimate and legally justifiable decisions that the Left hates. The prohibition against “the appearance of impropriety” means conduct that could be reasonably and objectively seen as improper, not conduct that partisan fanatics find convenient to call improper. Professionals like lawyers, politicians and judges should be capable of interacting socially with those they may disagree with, and there should be no adverse inferences from accepting a private party invitation. As the late Justice Scalia insisted, even Supreme Court Justices are entitled to a social life. If the job requires living like a cloistered monk, no one will want the job.

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Now THAT’S An Incompetent Judge!

Darrell Brooks, accused as the killer in the Waukesha Christmas Parade massacre (yes, he did it), has been defiant and combative throughout his trial, in which he is serving as his own defense attorney. This time, he slammed his fist on the table and stared menacingly at Judge Jennifer Dorow. As Count Floyd (Joe Flaherty), the cheesy host of Monster Chiller Horror Theater in a recurring SCTV skit used to say, “Ooooh! Scary!” So the judge fled the courtroom.

“I need to take a break,” Judge Dorow said. “This man right now is having a staredown with me. It’s very disrespectful, he pounded his fist, frankly, it makes me scared and we’re taking a break.”

It made her “scared’! As the judge, she has all of the power, and the criminal defendant has none. Judges have faced evil glares from maniacs, murderers, cannibals, rapists and the worst dregs of humanity for centuries, but I’ve never heard of one being so tender and faint-hearted that she couldn’t take the metaphorical heat and had to hide.

Dorow’s weenie act is a straight-up breach of the Wisconsin Code of Judicial Conduct. It says that “A judge should participate in establishing, maintaining and enforcing high standards of conduct and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.” It commands that judges “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” It requires judges to “maintain professional competence” and “require order and decorum in proceedings.”

What a disgrace. Running from the scary man making faces at her denigrates the court system, judges, and women in authority. It also may prejudice the trial and give Brooks a basis for an appeal. Judge Dorow has made it clear that she doesn’t have the fortitude to do her job in this trial, and should recuse herself. I would recommend that a judicial panel seriously consider whether she should remain a judge at all.

Clarence Thomas Gets A Rare “Double Dunce,” Ethical And Political

I really don’t comprehend how this can happen with someone like Justice Clarence Thomas. Donald Trump, sure. But Thomas is smarter than this.

Between 2003 and 2007, Ginni Thomas, the Justice’s controversial wife and a hard-Right activist, earned $686,589 from the Heritage Foundation, according to a Common Cause review of the foundation’s IRS records. Yet Justice Thomas failed to note the income in his Supreme Court financial disclosure forms for those years. He checked a box labeled “none” where “spousal non-investment income” is supposed to be disclosed.

Federal judges are bound by law to disclose the source of spousal income, meaning that if the information found by Common Cause is accurate, Thomas did not comply with the law. SCOTUS justices are supposed to obey the law, even more than everybody else, in some respects. Legal ethics expert Steven Lubet (I used his legal ethics textbook when I taught the subject at American University!) says that a failure to disclose spousal income by a federal judge “is not a crime of any sort, but there is a potential civil penalty” for it. “I am not aware of a single case of a judge being penalized simply for this,” the professor says.

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The Judge, The Video And The Slur [Corrected]

Judge Michelle Odinet of the City Court of Lafayette, Louisiana, resigned last week after being heard on a video using the term “nigger” while watching security footage of a foiled car burglary outside her home. In her letter of resignation to the chief justice of the Louisiana Supreme Court, Odinet said she was stepping down “after much reflection and prayer, and in order to facilitate healing within the community.”

“My words did not foster the public’s confidence and integrity for the judiciary,” she wrote. Yeah, I would say that that’s accurate. Still, it’s a strange story. In the video, voices off camera inside the judge’s home are heard saying “nigger” repeatedly and laughing as they watch security-camera footage of someone trying to break into a car until the criminal was foiled. Also used: “mom,” which is the judge, who was clearly joining in the hilarity.

The video was originally sent by an unknown source to a local newspaper, and when she was first questioned, Odinet tried to huminhumina out of the mess. She initially said she had no recollection of the conversation shown, and claimed that her “mental state was fragile” because of the attempted burglary. She also used the excuse that she had been “given a sedative at the time of the video.” Then she played the Pazuzu card (“That’s not me talking!”) protesting that “Anyone who knows me and my husband, knows this is contrary to the way we live our lives.” Continue reading

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


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.


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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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