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

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

Musings On The Clarence Thomas Affair and Insideous, Unavoidable, Rationalization Eleven

If you are good enough and valuable enough, do you deserve one of these?

If you are good enough and valuable enough, do you deserve one of these?

A recent—and off-topic—comment caused me to begin thinking about “The King’s Pass,” #11 on the Ethics Alarms Rationalization hit parade,and perhaps the most perplexing of them all. The commenter referenced the 2010 discovery that Supreme Court Justice Clarence Thomas had inexplicably neglected to mention his activist wife’s annual income on his annual financial disclosure filings, meaning that he had filed a false affidavit and violated the law. Thomas claimed that he had made a careless mistake—for five years—and the matter was allowed to drop except for the angry agitating of the Anti-Clarence Thomas Furies, who are constantly searching for any way to get a conservative black justice off the Supreme Court short of assassination.

The episode had left a bad taste in my mouth, and I was happy to be reminded of it, bad mouth tastes being essential to triggering ethics alarms. I went back to read my post on the matter, and sure enough, I had followed the principle of rejecting The King’s Pass, and asserted that Thomas should be punished appropriately and formally…but that really ducked the question. Lawyers have lost their licenses to practice for single episodes of swearing to false information when it was far more obvious that a mistake had been made than in Thomas’s case, as when a hapless Maryland lawyer carelessly signed a legal document that had misrecorded  his address. The logic of this no-tolerance ruling was that a lawyer, above all people, should never swear to a falsehood, and that doing so, even once, was a serious breach of duty calling into question his fitness to practice law. I think the penalty for this particular act was excessive—it is cited locally as a cautionary tale—but I agree with its underlying principle, which should apply with even more vigor when the lawyer in question is a judge, and not merely a judge, but a Supreme Court Justice.
Continue reading

Ethics Observations On The Latrez Cummings Sentence

"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

Incompetent Elected Official Of The Month, Or “You Know, Sometimes The Southern States Really Ask for All The Ridicule They Get”: Alabama Chief Justice Roy Moore

This is, I know, akin to shooting fish in a barrel, as Moore has long established himself as a renegade wacko, notably when he defiantly displayed the Ten Commandments in his court house even after a higher court declared that it was unconstitutional. It’s unethical to violate a court order if you are a judge (duh!), and as a consequence of his silly and expensive grandstanding in defiance of the Establishment Clause (Moore believes that the Government of the United States was established to support Christianity,that’s all there is to it, and nobody is going to convince him otherwise, so there), he was quite properly removed from office by a court order he couldn’t defy.

Oh, never mind ethics, law, the Constitution, the U.S. Supreme Court and the general advantages of not having a Chief Justice heading your state’s Supreme Court who makes up the law as he goes along: the citizens of Alabama, in their wisdom, elected Moore to be Supreme Court Justice again, and so he is.

WOW. Continue reading

Now THIS Is An Unethical Sentence!

This time, it's the Judge who has "affluenza"...

This time, it’s the Judge who has “affluenza”…

He’s not a juvenile. He’s a middle-aged man, and a DuPont heir, living off of his trust fund. He’s also a child rapist, and the child he raped was his daughter, who was three.

Nonetheless, Delaware Judge Jan Jurden sentenced Robert H. Richards IV to treatment rather than jail.

Continue reading

Signature Significance Lesson: Pazuzu, The Judge And The Racist Email

"Your Honor, uh, you're not quite yourself today.."

“Your Honor, uh, you’re not quite yourself today..”

How many racist e-mails does one have to send out before it proves one is a racist? At Above the Law, legal affairs blogger Ellie Mystal says the answer is one, and I agree. Mystal writes:

“If you send one horribly racist email that actually manages to leak out into public discourse, it’s probably not your only one. Seeing a racist email from someone is like seeing a mouse in your apartment: there’s never just one. I believe in temporary insanity, but I don’t believe in sudden onset racism that magically appears once and only once and then disappears forever. Of course, whenever anybody gets caught in a racist email scandal, they always say that it’s the only one. It’s always “Whoops, that email was racist, but I’m not racist.” The racist email is always allegedly “out of character,” and the person always claims to have shown “poor judgment.” And that person always has some apologists, as if sending one or two racist emails is just something that “happens” in the normal course of business to non-racist people.”

The “out of character” nonsense is what Ethics Alarms refers to as the “Pazuzu Excuse,” as when someone explains that his or her full-throated expression of a vile nature “just wasn’t me” and “doesn’t express how I feel,” as if their being was suddenly possessed by the evil demon that made Linda Blair spit pea soup in “The Exorcist.” People try that excuse—and absurdly often are allowed to get away with it—because, at their core, they realize that signature significance is persuasive when judging character. Non-racists simply don’t send out racist e-mails ever, even once, and one such episode, all by itself, is convincing evidence that the sender is, in fact, a racist.

The racist under discussion by Mystal was retired federal judge Richard F. Cebull, appointed chief judge for the District of Montana by President George W. Bush in 2001. In 2012, Cebull got in trouble when he sent the following e-mail to seven acquaintances: Continue reading

The Fifth Annual Ethics Alarms Awards: The Worst of Ethics 2013 (Part One)

This is the first installment of the Worst.  It says something, and not something happy, that this segment of the year-end awards are more than twice as voluminous, and far more competitive, than the “Best” of 2013 ethics. Well, nobody said it would be easy….

Ethics Train Wreck of the Year

trainwreck

Obamacare, a.k.a Affordable Care Act. This is quite an achievement, as there were at least two other three Ethics Train Wrecks rolling along in 2013 that would have been easy victors in a less horrible year. One of them, The Trayvon Martin- George Zimmerman Ethics Train Wreck, was last year’s winner, and still wreaked ethics carnage across the culture, thanks to Zimmerman’s trial (which never should hev been brought), the biased media coverage, the incompetent prosecution, the inept judge, and then afterward, the ignorant and/or racially motivated attacks on the jury for doing its job well and fairly against overwhelming odds. Yet as bad as this hangover from 2012 was, the Sandy Hook Ethics Train Wreck was arguably even worse. The news media decided to go Soviet and abandon all pretense of objectivity, essentially becoming an Obama Administration propaganda tool for gun control. Elected officials lied their heads off; so did the aroused NRA. Gun owners talked and behaved like they were about to be Gulaged. Legislators shamelessly used the grief of victims to stampede public opinion; children became props; fake statistics were everywhere; brain-damaged Gabby Gifford was programmed to read child-like messages as if they were the conclusions of research papers. The President’s total lack of political leadership skill again came front and center, then, when he had failed to do what he promised to do, the opposition was vilified by celebrities like Jim Carrey, who called them murderers and worse.

But the Affordable Care Act lapped both of these. It revealed itself to be a five-year long train wreck that just took a break after an earlier stretch where the bill was passed without due diligence by its supporters and using a cynical by-passing of due process. A Presidential lie intentionally devised to deceive the public was repeated for the five-year span, and then exposed when the law began to take affect….but not before the law inspired Republicans to force a reckless and irresponsible shut-down, a mini-train wreck within the train wreck.  The website debacle was initially spun by the news media (not working worth a damn isn’t a “glich”), then the evidence of near criminal ineptitude became impossible not to report. The indisputable evidence that the President of the United States had sold a program under false pretenses came to light, prompting dozens of politicians, bloggers, pundits and reporters to destroy their credibility forever (I hope) by desperately trying to either rationalize the lie ( “the ends justify the means”), call it something other than what it was (The New York Times’ disgraceful “incorrect promise” was one low point), or simply deny that it was a lie at all (Democratic Chair Debby Wasserman Schultz, setting a new low for personal dishonesty, itself an achievement in her case). Then, when the public pressure and political fall-out became unbearable. the President just began amending the provisions of his own law on the fly, except that it was the nation’s law, and it’s unconstitutional to do that—this, after the mantra from Democrats and the news media during the shut-down debate was that the ACA was “settled law.”  HHS Secretary Sibelius misled Congress, the White House denied that her stated goals were goals once it was obvious they wouldn’t be met; and nobody was held responsible for yet another Obama Administration debacle. And there’s a lot more, with the train wreck still moving at top speed.

Fraud of the Year

Iowa State University biomedical sciences assistant professor Dong-Pyou Han, who resigned after admitting he tainted blood samples to get desired outcomes in research animals, allowing him to claim a break-through in the effort to develop an AIDS vaccine. The National Institutes of Health had awarded Han’s research team $19 million in multi-year grants.

Incompetent Elected Officials of the Year

  • Elected Body (National): House Republicans, who staged a wholly useless, expensive and damaging government shut-down on “principle,” without ever articulating what that principle was sufficiently for anyone responsible to agree with them. Runner-Up: The California House Legislature, which passed a law allowing illegal aliens to practice law.
  • National Elected Official:  President Obama.  From being incapable of working with Congress, to refusing to fire incompetents, to not knowing what was going on in his own administration, to drawing red lines he wasn’t willing to defend (and then advocating killing people just to show he was willing to defend them), to undermining the trust and faith in both his office and himself by uttering unequivocal lies, President Obama had one of the worst years of self-inflicted miscalculations, errors, failures and reversals of any U.S. President in history. I’m sorry to have to say it, but it’s true.
  • Local Elected Official: Storey County (Nevada) Assemblyman Jim Wheeler (R). Wheeler told a group that if his constituents demanded it, he would vote (with a heavy heart)  to reinstate slavery, as he felt doing so would be his duty as a representative. Runner-up: Maryland House of Delegates Member Don Dwyer (R), who after a drunk driving and drunk boat piloting episode, the latter injuring several people, blamed his conduct in part of feeling betrayed over his colleagues approval of gay marriage in Maryland.

Sexual Harasser Of The Year Continue reading

Ethics Hero: Former Brooklyn Judge Frank J. Barbaro (Zimmerman Furies: Is This Your Future?)

We can hope.

From the NY Times...

 The judge’s conscience gnawed at him a little more every year after he retired from the bench. With every news article he read about a wrongful conviction, Frank J. Barbaro, the former Brooklyn judge and assemblyman, would return to a particular murder case in 1999, and question whether he had made the right decision to send a man to prison for 15 years to life. Not long ago, Mr. Barbaro, 85, decided to contact the lawyer for the man, Donald Kagan. He got a transcript of the trial, during which Mr. Kagan had waived his right to a jury and put his fate in Judge Barbaro’s hands.

“As I read it, I couldn’t believe my eyes,” the former judge said in an interview. “It was so obvious I had made a mistake. I got sick. Physically sick.”

Mr. Barbaro’s change of heart led to a highly unusual spectacle this week in a Brooklyn courtroom: He took the witness stand in State Supreme Court to testify at a hearing that his own verdict should be set aside. His reason was even more unusual: As a die-hard liberal who had fought as a politician against racism in Brooklyn and weathered the race conflicts in Bensonhurst, he said he had been biased against Mr. Kagan because he was white and the shooting victim, Wavell Wint, was black.

“I believe now that I was seeing this young white fellow as a bigot, as someone who assassinated an African-American,” Mr. Barbaro testified on Wednesday before Justice ShawnDya L. Simpson. He added: “I was prejudiced during the trial.” Continue reading

What Do You Do With The Drunken Judge? Media Distortion And Judge Gisele Pollack

Broward County (Florida) Judge Gisele Pollack, a recovering alcoholic, showed all the signs of suffering a relapse during her session on the bench two weeks ago, when she abruptly ended the day’s proceedings after an hour and a half that featured the judge slurring her words and acting erratically. She presides over misdemeanor drug court, a program she established shortly after being elected as a county judge.  Her program offenders to have their charges dismissed and their drug records erased after six months of treatment.

After staying away from work for a day, Judge Pollack returned to the bench in the late afternoon, and presided over a courtroom packed with about a hundred drug offenders, along with  their friends and their families. The event marked the completion of rehab for dozens of offenders and the dismissal of their misdemeanor marijuana charges.“You’ve got to remain vigilant,” she told the graduates, emphasizing that they had to work hard to avoid relapses that would  place them back in front of her, and perhaps in jail.

After court, she acknowledged her own health crisis and announced that she was going into an outpatient rehab program. An attorney retained by the judge in the wake of her conduct attributed her relapse to personal issues, telling reporters that she has  “had some severe personal tragedy in her life. Her mother recently passed away, and they were very close. It’s been really devastating for her.” Apparently her son is also suffering from a serious illness. Broward Public Defender Howard Finkelstein, a longtime friend, told reporters, 

“If this causes the people to not have faith and not have trust in what goes on in that drug courtroom, then she will have to step aside,’ he said. ‘My hope is is people will wrap their ever-loving arms around Judge Pollack just as she has wrapped her arms around thousands of people.”

What’s going on here? I think it’s pretty obvious: a recovering alcoholic in a critical position of public trust suffered a relapse, as alcoholics are wont to do. If one is an alcoholic, this is a symptom of a very persistent, pernicious and incurable disease that kills many Americans every year, does horrific damage to families, businesses, governments and the economy, and that is incurable. Being an alcoholic is not an ethical violation for a judge or a lawyer, nor is having a relapse. Allowing that relapse to affect the competent performance of one’s duties, however, is an ethical violation that calls into question a legal professional’s ability to do her job. It could trigger professional sanctions; it certainly should trigger an official inquiry. A Florida judge appearing drunk on the bench, just once, is still a massive ethical breach. It arguably violates the first five Canons of Judicial Ethics a Florida judge is bound to follow… Continue reading

Comment of the Day: “Ethics Observations On The “Affluenza” Sentence”

 

I don't think this is the same "Theodoric of York" who authored this excellent "Comment of the Day"...at least I hope it isn't.

I don’t think this is the same “Theodoric of York” who authored this excellent “Comment of the Day”…at least I hope it isn’t.

The heat/ light ratio in the comments to the post about the controversial sentencing of a 16-year-old scofflaw in Texas has been depressing, but among the rational, measured, well-considered and thought-provoking responses by those who actually read the post, this one, by new commenter Theodoric of York,  is a winner. His politeness is especially appreciated among all the posts calling me names that would shock my mother. I hope he comes again, and often.

I’ll have some further comments after he’s had his say. Meanwhile, here is Theodoric of York’s Comment or the Day on the post Ethics Observations on the “Affluenza” Sentence.

Disclaimer the first: I’m not an attorney, nor do I play one on TV. Disclaimer the second: I have no knowledge of Texas law regarding juvenile justice, nor do I have any knowledge of Texas state law regarding negligent vehicular homicide, nor do I have any real knowledge of that state’s laws regarding DUI, homicide, manslaughter or murder. And yes, I know the difference between murder and negligent vehicular homicide, and I am also aware that young Mr. Couch is a minor. Disclaimer the third: I have not read Judge Boyd’s actual ruling, nor have I seen actual video of her sentencing. If someone could provide a link to that (if a link exists), it would be appreciated. That being said: Continue reading