Morning Ethics Warm-Up: 6/24/17

This morning, my mind is occupied by one long-standing ethics issue, and the rest seem trivial in comparison. Let’s warm up by trying to find some way out of this mess.

The ethical problem seems increasingly beyond our ability to solve. Yesterday there was second mistrial in the retrial of Raymond M. Tensing, the former University of Cincinnati police officer who has been charged with the 2015 murder and voluntary manslaughter for fatally shooting Samuel DuBose, an unarmed motorist.  This is the third example of a police officer shooting a black man under questionable circumstances being found short of being criminally responsible in a week:

In St. Paul, police dashboard video showed Officer Jeronimo Yanez shoot into the car where Philando Castile was sitting with his fiancée and her daughter, and acquitted the officer. In that case, the officer appeared to have panicked after Castile reached into his pocket for his wallet after telling the officer, unasked, that he was carrying a firearm. In Milwaukee, jurors acquitted Officer Dominique Heaggan-Brown after watching frame by frame as he shot once at fleeing armed suspect, Sylville K. Smith, then fired a second time after Smith tossed the gun he was holding and lay on the ground. Now, in Cincinnati, jurors couldn’t agree on the proper culpability of Officer Tensing. He stopped  DuBose for a missing license plate, then asked him for his driver’s license. Instead of producing it, DuBose pulled the door closed with his left hand and restarted the car with his right hand. The officer reached into the car with his left arm, yelled “Stop!” twice, and used his right hand to fire his gun directly, into Mr. DuBose’s head, killing him.

What can we say about these scenarios, and many others? Continue reading

Morning Ethics Warm-Up: 6/16/17

1. It looks like Bill Cosby is going to be acquitted, and probably rightly so, though probably for the wrong reason: bias. The jury is deadlocked, and I’d bet my head that one or more hold-outs just can’t accept the fact that that nice Cliff Huxtable would do those horrible things unless the victim consented somehow. Cheat on his wife. maybe. But not that.

Celebrity defendants whose public images are benign begin criminal trials with automatic unreasonable doubt built-in; this is part of the reason O.J. and Robert Blake (“Baretta”) avoided murder convictions. Celebrities with less sterling reputations are not so fortunate: had Bill Cosby been the one who shot a woman he barely knew at his home under strange circumstances, he would have probably been acquitted. Unfortunately for Phil Spector, the pop record producer had a well-established reputation for being nuts. The reasons Cosby can be acquitted for just reasons is that the victim is on record calling and chatting with him dozens of times after she was drugged and sexually assaulted, and because only one of the 50 or so Cosby victims was allowed to testify to show a pattern of behavior. The standard of  proven  guilt beyond a reasonable doubt is intentionally difficult to meet. There is no doubt whatsoever in my mind that Cosby is guilty, and his eventual acquittal won’t change my certainty. Nonetheless, those attacking the verdict and the jurors will be wrong, just as they were with O.J. and Casey Anthony.

2. One more thing regarding Cosby: yesterday I heard a CNN anchor who was about to interview another Cosby victim describe the woman as someone who has accused Bill Cosby of “inappropriate conduct.” The host caught herself, sort of, by adding, after a pause, “to say the least.” The woman claimed she had been raped. Even the anchor couldn’t bring herself to attach to dear, funny, sweet Cos such a heinous crime, so she engaged in craven equivocation. “Inappropriate conduct”?  Belching at the dinner table is inappropriate conduct. Drugging trusting young women and raping them is entirely different.

This is CNN.

 I regard a broadcast news journalist stating that Bill Cosby has been accused of “inappropriate conduct” misleading, incompetent, and fake news. Continue reading

Calling This Lawyer Unethical And Incompetent Doesn’t Quite Capture His Basic Problem: He’s An Idiot

Defending his client of rape charges, Tennessee criminal defense lawyer Steve Farese told the jury during his closing argument,

“People can be very good at lying. Women can be especially good at it because they’re the weaker sex and we … and we want to protect them and not have anybody take advantage of them at least I do.”

Head-exploding  fact #1: The jury Ferese was appealing to by emphasizing the inherent dishonest nature of  “the weaker sex”  was made up of eleven  women and three men.

Head-exploding  fact #2: The jury still acquitted Ferese’s client.

That doesn’t make his argument ethical. The statement appealing to anti-women bias was a direct ethics violation, a breach of  Tennessee Rule of Professional 8.4 (d) forbidding lawyers from engaging in conduct that is prejudicial to the administration of justice, which deliberately appealing to anti-woman bias clearly is. For the future, the episode also raises questions about whether such a closing would breach the new ABA rule 8.4 g,  yet to be adopted in Tennessee or any state, which states that it is unethical for a lawyer to

“engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

The ABA notes specify that “This paragraph  does not preclude legitimate advice or advocacy consistent with these Rules.”

I am certain Ferese’s statement would breach 8.4 (g), not that it isn’t unethical anyway.

Continue reading

The Ethics Meltdown Of Elie Mystal Continues

Surprise! This isn't MY head exploding. It's Elie Mystal's!

Surprise! This isn’t MY head exploding. It’s Elie Mystal’s!

“Above the Law”‘s Elie Mystal has crossed over from being a provocative, if often emotion-driven and unprofessional, legal news analyst to being an Angry Black Man for whom law and justice is tangential. As Ethics Alarms covered here, Mystal already has proclaimed that the existence of a single intransigent juror who hung the jury in the Michael Slager trial proves that whites are incapable of race-blind justice. In his latest stage of racist fury, Mystal now wants black jurors to sabotage the justice system.

“Black people lucky enough to get on a jury could use that power to acquit any person charged with a crime against white men and white male institutions. It’s not about the race of the defendant, but if the alleged victim is a white guy, or his bank, or his position, or his authority: we could acquit. Assault? Acquit. Burglary? Acquit. Insider trading? Acquit.Murder? … what the hell do you think is happening to black people out here? What the hell do you think we’re complaining about when your cops shoot us or choke us? Acquit. Don’t throw “murder” at me like it’s some kind of moral fault line where the risk of letting one go is too great. Black people ARE BEING MURDERED, and the system isn’t doing a damn thing to hold their killers accountable. Sorry I’m not sorry if this protest idea would put the shoe on the other foot for a change.”

You can read the rest; it’s all like this. Mystal is bonkers. There’s no reasoning or fairness in his screed. He’s just fulminating, growling and slobbering like a rabid dog. It’s sad. Nobody can take anyone who expresses this kind of irrational hate as a response to frustration seriously. He’s not accurate, he’s not truthful, he’s not responsible. He has left law and logic so far behind he may never work his way back to them.

I’ll touch on just a few splashes of Mystal’s projectile hate-vomit: Continue reading

More Lone Juror Ethics: The Slager Trial, Juries, And Justice

lone-juror

This was what I was afraid of. It is also why Michael Slager, who is guilty as hell, didn’t plead guilty despite slam-dunk, irrefutable evidence that he executed  African-American Walter Scott as he was fleeing arrest last year. It is why I argued that if Slager ethically cared more about the law, his profession, his community and his country than he did about literally getting away with murder, he was ethically obligated to plead guilty so this couldn’t and wouldn’t happen.

A single juror told the judge in the Slager trial last week that he can’t find the ex-cop guilty. In a letter to the court, the would-be Henry Fonda said, “I cannot in good conscience consider a guilty verdict…I cannot and will not change my mind.”

The jury foreperson confirmed  in a separate note  that it was only one juror who was “having issues” convicting Slager, who pulled over Scott’s car in North Charleston, South Carolina last year, and ended up shooting him in the back while a bystander recorded the killing on video. Circuit Judge Clifton Newman sent the jury back for more deliberation, and they are expected to report on their progress at 9 a.m. Monday.

The lone juror holding out for innocence against eleven wanting to convict is celebrated as a courageous and system-defining stand in “Twelve Angry Men,” but it strains our faith in the system when the facts are like they are in this case. Nonetheless, the possibility of a not guilty verdict in the supposedly open-and-shut case is essential to the integrity of our system’s principle that even the most obviously guilty deserve a competent defense and a trial before a jury of their peers. Either we believe, as it has been said by many, that it is better for 100 guilty defendants to go free than for a single innocent citizen to be convicted, then we have to respect and accept the result when a lone juror seems to violate common sense and law.

Is Slager “more guilty” than O.J.? I could argue that they both deserve punishment, but if one deserves it more than they other, I’d pick Simpson, who killed two people, and wasn’t attempting a lawful arrest. (I could also argue that this kind of shooting by a police officer deserves a harsher punishment, because of his profession and his duties to society.) However we feel, we cannot condemn the lone juror without endorsing summary justice and show trials. If we believe in fair trials, we must believe in not guilty verdicts when a defendant seem obviously guilty, and lone jurors who cannot be convinced of guilt beyond a reasonable doubt.

Taking the other approach—emotion, anger and irrational hate—will be the likes of Elie Mystal, who, I think it is fair to say, needs a vacation. In an embarrassing post on the legal gossip site “Above the Law,” the African-American pundit intentionally misleads his readers by leaving out the key fact that it is only one juror who isn’t convinced by the overwhelming case against Slager, in order to indulge in an anti-white hate-fest: Continue reading

The Michael Slager Trial: When The Ethical Course Is To Not Exercise a Right

shooting_of_walter_scott

Michael Slager is the white North Charleston police officer who stopped African American Walter Scott for a taillight violation on April 4, 2015, and in the ensuing events, ended up fatally shooting Scott as he fled the scene, in the back, as recorded on a cell phone video. Of all the many police-involved shootings, this is the least equivocal. Slager is guilty of murder of one kind or another: in South Carolina, there is only one kind, and  mitigating circumstances are reflected in the sentence. He could receive life in prison, or much less time.

But every criminal defendant has the right to be tried by a jury of his peers before the law finds him guilty, and Slager is taking full advantage of the right. In doing so, he is forgoing his last clear chance at redemption. The former officer—he has already been fired for the episode and not just put on paid leave, as is usually the case—is understandably trying to avoid a conviction and jail time, even though, should he be acquitted by some miracle or act of mass hypnosis, it would be certain to provoke even more anger and distrust in the black community, and, I would hope, among non-African Americans as well. A justice system that finds, no matter how it reaches such a conclusion, that an officer who shoots a fleeing man dead like Slager did is not guilty needs to be blown up and seeded with salt. When Slager’s first lawyer saw the video, he quit.

Do you think an acquittal is impossible? Don’t. All that is needed is a jury full of people who “think,” and I use the word generously, like the signers of this petition. I’m pretty sure that there are more than twelve of them available. Continue reading

The Disgraceful Exploitation Of Ken Bone, With This Ethics Note: Ken Is 100% Correct That Trayvon Martin’s Shooting Was Justified, While Journalists And Pundits Who Criticize Him For Saying So Are Big Lie Purveyors

ken-bone

I’m glad I could clear that up.

Poor Ken Bone, the man in the red sweater who was chosen as a designated undecided voter to ask a question at the last debate, embodies Andy Warhol’s “15 minutes of fame” comment because, apparently, the news media has to come up with trivia to write about so it doesn’t have to inform the public about substance they actually need to know about. The perfectly unremarkable man chosen to ask a question at this fake “town meeting” should have been allowed to do his job and then go back to his normal life, but no. Silliness demanded that he be lionized and bestowed with celebrity status. Even the usually rational Jake Tapper got into the act, telling his viewers…

All day long, my staff and I, we’ve been pondering this important question, “What makes Ken Bone so awesome?” …Why do we all find him so charming? Is it the red sweater? That was actually his backup outfit after he says he split his pants to his olive-cover colored suit. Maybe it’s the mustache? Perhaps it’s the disposable camera he used to snap pics after the debate. Ken Bone’s name started trending online during the debate. Now, Mr. Bone is making the TV interview rounds. He told CNN earlier today about his new following on Twitter…. He’s even more awesome than ever, just watching that clip. [His Twitter following]  is more than 30,000 now, and the Ken Bone memes are everywhere. There’s Ken Bone with the 90s rap group, Bone Thugs-n- Harmony. How about the Ken Bone Halloween costume?

How about stopping the condescension and tongue in cheek mockery, Jake? Yeccch. It is nothing less than cruel to throw someone into the maw of celebrity like this, a throbbing neon target to social media bullies and the Twitter Furies who have nothing more productive to do in their mean, measly, pointless lives than mock, ridicule and attack a citizen who tried to participate responsibly in an irresponsible election. Now he is under national scrutiny for his clothing, his weight and his moustache. What is wrong with these people? Is the Golden Rule extinct?

Don’t blame Ken because he accepted invitations to appear on TV after his big moment. He’s never been a celebrity before. If he had done some research, he would have discovered that most ordinary Americans thrust into the celebrity machine come to regret it, but for him this is different, this is exciting, this is fun! He gets flown to places he’s never been, and put up at nice hotels, and treated like royalty. Some ad agencies will try to recruit him for a disposable commercial or two: who turns down money? Who turns away from their 15 minutes, if it comes? Would you? We can’t blame him, because he is a good person, and good people often make the dangerous mistake of assuming that the people they deal with, like the news media are also good people. Unfortunately, they cannot be trusted.

Thus what has happened to Ken Bone was completely predictable. Having been built up by irresponsible journalists like Tapper into something he never asked to be—National Puppy of the Month would be a good name for it—it was inevitable that other irresponsible journalists would see cheap columns and clicks from tearing Bone down. Even though Bone had told the media that he was leaning toward voting for Clinton, vicious  progressives—the mistreatment of Ken Bone comes entirely from the left—dissected his comments when he  participated in an “Ask Me Anything” forum on  Reddit, using them to denigrate him. They also went back to check other statements he had made on the site. What they found was virtually nothing; I find myself imagining what these cruel, unethical people would do with everything I’ve written online. Never mind: it was enough. In response to “Truth or Dare” style questioning, Ken…

  • Admitted that he watched porn and peeked at Jennifer Lawrence’s nude photos when they were hacked.
  • Admitted to forging insurance documents so that he could keep a pizza delivery job. This, despicably, was headline on some sites as “insurance fraud.” It is not insurance fraud. It is lying. Insurance fraud occurs when someone collect insurance payments based on false representations, not when someone falsely claims to be insured.

“Worst of all,” we were told, and thus most publicized of all, Bone opined months ago that Trayvon Martin’s shooting was “justified.”

The Horror.

It is part of the current politically correct narrative to keep Black Lives Matter from being properly recognized as the racist propaganda organization that it is for the progressive community to preserve and protect the Big Lie that George Zimmerman murdered Trayvon Martin because he was black. The lie persists on liberal websites; it was enabled at the Democratic National Convention when Martin’s mother was allowed on stage in a mass pander to the victims of police shootings; it is advanced every time Martin’s name is included in the litany of young black men supposedly killed by a “systemic racism.” Whatever other cases may show, Trayvon Martin’s death only stands for racism and murder because unscrupulous, dishonest, and on occasion ignorant activists, politicians and journalists want it to.

There has never been any evidence that George Zimmerman profiled Martin, who was a stranger walking through a gated community at night. MSNBC even altered a 911 tape to make it sound like this was the case, and a Big Lie was born. There has never been any evidence that prior to the tragic encounter, Zimmerman had  expressed racist views. The evidence that is available shows that Martin confronted Zimmerman, not the other way around. Finally, investigators established that Zimmerman was being beaten by Martin and reasonably felt in mortal danger when he shot the teen. Those are the facts, and based on those facts, a jury properly acquitted Zimmerman of murder applying the doctrine of self-defense, which made the death of Martin a legally justified killing under Florida law and all criminal law going back centuries. Bone’s comment on Reddit…

bone-tweet

…is entirely accurate, fair, and reasonable. Continue reading

Ethics Quiz: Ammon Bundy’s Cowboy Boots

Ammon Bundy. Nice look...that last name is a problem, though.

Ammon Bundy. Nice look…the jury should like it. That last name might be a problem, though.

Jury selection is was about to begin last week  in the trial of Ammon Bundy (Son of Cliven, no relation to Ted) and his fellow defendants who led an armed stand-off on federal lands in Oregon.  First, however, the judge in the case had to rule on Bundy’s lawyer’s motion demanding that the defendants, who are in custody, can wear neckties, belts and boots at trial as requested.

The U.S. Marshal’s Service  emailed  Bundy and the rest to alert them that certain  items of apparel wouldn’t be permitted at their trial: “Ties, Bows, Belts, Handkerchiefs, Cuff Links, Steel toe boots/shoes, Shoe laces, Shirt tie down straps, Safety pins, Shirt pocket pen protectors.” When U.S. District Judge Anna J. Brown Tuesday afternoon asked Barbara Alfono, the deputy U.S marshal in charge of the Bundy trial, about the requirement, she explained that security concerns were the source of the order. Those accessories could be used as weapons against deputy marshals or the defendants themselves, she said. As for the boots, they would interfere with the shackles that are placed around the defendants ankles as they are transported to and from the courthouse. (The shackles will be removed, because prior courts have ruled that they are prejudicial, making defendants look dangerous to the jury.)

J. Morgan Philpot,  Ammon Bundy’s marvelously named lawyer, argued that since his client is innocent until proven guilty, he should be allowed to wear the civilian clothes that he chooses.  “These men are cowboys,” Philpot wrote  in his motion, “and given that the jury will be assessing their authenticity and credibility, they should be able to present themselves to the jury in that manner.” He continued:

“We must consider, when he does so, how will he look? And what are the spot assumptions and impressions will the jury have about him when they see him in the kind of white socks and loafers he was wearing today, with his beltless trousers, and dressed in a formal suit without a tie,Just as significantly, how will the lack of belt, tie, or other apparel compare to others in the courtroom, as he and the other detained defendants are the only ones who will appear that way.”

The judge ruled against him.

Your Ethics Alarms Ethics Quiz of the Day:

Is it ethical for the system to prevent accused cowboys from looking like cowboys during their trial?

Continue reading

“Baretta,” The Ethics of Criminal Justice, And Keeping The Sentence From The Jury

Just stay in the box, everybody...

Just stay in the box, everybody…

Florida criminal defense lawyer has made a thorough and passionate argument on his blog for letting a jury know what the sentence is likely to be if it convicts the defendant in a criminal trial. He writes in part:

Florida juries are not permitted to know the most basic truth of a case—the potential sentence. Kind of crazy, right? Citizens are not allowed to know the sentence that will result from their verdict out of fear that such information would sway the jury’s conscience toward not guilty (God forbid a jury with a conscience!). Such fears say a lot about how harsh our criminal justice system has become. Continue reading

The Disturbing Case Of The Intimidated Juror

Courtroom Jury Box

I don’t like the implications of this story one bit.

In Clayton County, Georgia, a jury had just come in with an acquittal verdict in the trial of Eric Lydell Smith, who had been charged with nine counts including malice murder, felony murder and aggravated assault, in connection with the death of his neighbor, Eric Hernandez. Two years ago, Smith and Hernandez got into a fist fight on the street where both lived. Smith, an African-American, says he shot Hernandez—the mainstream newsmedia would refer to him as a “white Hispanic” if he had done the shooting— in self-defense, but prosecutors and witnesses told the jury the fight had ended and Hernandez was walking away when Smith killed him.

“Not guilty of malice murder,” the jury foreman read from the verdict form, as Hernandez’ family openly wept in court. One not guilty verdict after the another was announced. Then prosecutors, nobody is certain why, asked the judge to take the unusual step of polling the jury members. The first eleven jurors, in turn, repeated the announced verdict of “not guilty” on all counts. Then the 12th juror, a white woman,  answered the judge’s  “Is this your verdict?” with a shocking “No, your honor.”

That’s a mistrial. Smith will probably be retried. Continue reading