People, even lawyers, just do not interact much in remote seminars. It makes a three-hour session far more tiring, even though I’m sitting down, rather than stalking through the space. Thus I am blotto now, after a legal ethics session earlier today.
1. And THIS is the best paper in the U.S…Two headlines on the New York Times front page this morning my high school paper faculty advisor would have rejected…and he would have been right:
“Gaetz Said To Face Inquiry Over Sex With Underage Girl” The fact someone says it is not news. Is he “facing an inquiry” or isn’t he? “Three people briefed on the matter” isn’t a source: we’ve seen how accurate the Times anonymous sources are, especially when the subject is a Republican, a conservative, and a Trump supporter. Why the front page for a rumor? Slow news day? Hey, I’ve got an idea: How about an article about how Joe Biden called Georgia “sick” based on a complete misrepresentation?
“Taliban Believes The War’s Over And They Won.” This is psychic news again, my favorite fake news form. How does the Times know what the Taliban “thinks”? Who cares what it “thinks”?
From the Purcellville, Virginia Police Department:
Yesterday, March 18, 2020, an incident occurred at a local grocery store involving juveniles reportedly coughing on produce, while filming themselves and posting it on social media. Police responded and are currently investigating the incident. The grocery store immediately removed the items in question, and has taken appropriate measures to ensure the health of store patrons.
We are asking for parental assistance in monitoring your teenagers’ activities, as well as their social media posts to avoid the increase of any further such incidents. We have learned that this appears to be a disturbing trend on social media across the country, and we ask for help from parents to discourage this behavior immediately. Please talk with your children and explain to them why such behavior is wrong, especially given the current situation regarding the spread of Coronavirus (COVID-19). …
Ah, those wacky, wacky kids! Well, they’ll grow out of it, right?
Coincidentally, just as I am completing watching the Netflix documentary “The Devil Next Door,” another former Nazi prison guard has begun trial on charges that he was an accessory to 5,230 murders at a German concentration camp in Poland during World War II. “The Devil Next Door” engrossingly tells the strange story of a Ukrainian immigrant named John Demjanjuk who appeared to be a model U.S. citizen, respected neighbor and beloved husband and father in Cleveland before the U.S. decided he was really a former Nazi camp guard nicknamed “Ivan the Terrible” for his sadism and brutality at the Treblinka Nazi death camp in Poland. Demjanjuk was stripped of his U.S. citizenship and tried in Israel from 1986 to 1988 for crimes against humanity. A three judge panel convicted Demjanjuk and sentenced him to hang after a dramatic (and troubling) trial, but the former Ford auto-worker died while his appeal was pending. Under the doctrine of abatement ab initio, he is still presumed innocent.
As I have written here before, I have many ethical problems with the concept of war crime trials, but “Ivan the Terrible” certainly tests them. Whether or not Demjanjuk was Ivan, the Treblinka gas chamber operator was a monster even by SS standards, torturing the camp’s Jewish victims before their extermination. In the United States, I cannot imagine that that Demjanjuk would have been found guilty beyond a reasonable doubt: the evidence was compromised, the eye-witnesses often contradicted themselves and appeared confused (“Some were liars, some were senile, and some were liars and senile” is how Demjanjuk’s Israeli lawyer puts it on camera). The most damaging testimony against Demjanjuk was his own, and in the U.S. he never would have been allowed to testify.
Was he “Ivan”? All one can say is “probably.” The case was not proven beyond a reasonable doubt, not even close to it.
At the time, it was widely believed that Demjanjuk’s would be the last Nazi war crimes trial, but now Bruno Dey, 93, a prison guard in the Stutthof camp near what’s now Gdansk, Poland, is being tried in Hamburg, Germany. Continue reading →
“The Bad Seed” began as a novel by American writer William March, then became a 1954 Broadway play by playwright Maxwell Anderson, and ultimately a 1956 Academy Award-nominated film. The disturbing plot involves Rhoda Penmark, a charming little girl who is also a murderous psychopath. In the play’s climax, which the film version didn’t have the guts to follow, Rhoda’s single mother resolves, once it is clear that her daughter is killing people, to kill Rhoda herself, in a twist the anticipates such films as “The Omen.” She fails, however, and the sweet-looking serial killer in pigtails is alive and plotting at the play’s end.
A real life bad seed scenario is playing out in Chicago. A 9-year-old boy has been charged with five counts of first-degree murder, two counts of arson and one count of aggravated arson. The evidence suggests that he deliberately started a fire in a mobile home east of Peoria, Illinois, that claimed the lives of the boy’s two half-siblings, a cousin, his mother’s fiance and his great-grandmother.
The boy’s mother says her son suffers from schizophrenia, bipolar disorder and ADHD. She also says things like “he’s not a monster,” “he just made a terrible mistake” and my personal favorite, “he does have a good heart.”
Your Ethics Alarms Ethics Quiz of the Day is…
Is it ethical to charge a child so young with first degree murder?
Luke Heimlich is a rising college baseball star pitcher at Oregon State, and may well have a future in Major League Baseball. There is a problem though: Heimlich, 22, pleaded guilty to sexually molesting his 6-year-old niece when he was 15 years old. The further complication: he denies that he committed the crime, which was not just one incident but a pattern over two years. He told The New York Times that he only pleaded guilty to ” for the sake of family relations.” “Nothing ever happened,” he told the paper. The girl’s mother, however, says there is no question that he was guilty.”
The question then was whether Heimlich should be allowed to play college baseball. I wrote,
” what does it say about this man’s character that he pleaded guilty to get a lenient deal, and now blandly says that he was lying? I’d view him as more trustworthy if he admitted the crime, was remorseful and repentant, and accepted responsibility. If he did molest the girl, and still denies it, one can hardly say that he has been rehabilitated…”
I’m not sure I was firing on all cylinders when I wrote that, though. He pleaded guilty because that was, by far, the least risky course: I might have advised him to whether he was guilty or not. If he wasn’t guilty, then he’s telling the truth now about “lying” to avoid a harsher sentence for a crime he didn’t commit.
Meanwhile, the reader poll results indicated a strong majority favoring letting the pitcher get on with his life, and his baseball career.
Luke Heimlich is a rising college baseball star pitcher at Oregon State, and may well have a future in Major League Baseball. There is a problem though: Heimlich, 22, pleaded guilty to sexually molesting his 6-year-old niece when he was 15 years old. The further complication: he denies that he committed the crime, which was not just one incident but a pattern over two years. He told The New York Times that he only pleaded guilty to ” for the sake of family relations.” “Nothing ever happened,” he told the paper. The girl’s mother, however, says there is no question that he was guilty.
I’m tempted to say that it’s no wonder he pleaded guilty when he was 16. One of the charges was dropped and he was placed on two years’ probation, took court-ordered classes and had to register for five years as a Level 1 sex offender, which in the state of Washington means a low risk to the community. He had to write a letter apologizing to his niece. After five years, the records were expunged and he no longer has to register as a sex offender. What a deal!
Last year story was broken by the newsmedia, and now there is a controversy over whether Heinlich should be allowed to play college baseball. Brenda Tracy, a victims’ rights activists, asked the Times,
“What kind of message does that send our kids?” she asked. “We have now normalized this behavior. The feeling at Oregon State right now is that our team is winning, so they’ve moved on. What does that say to the little girl in this case? What does it say to all survivors?”
Then there is my concern: what does it say about this man’s character that he pleaded guilty to get a lenient deal, and now blandly says that he was lying? I’d view him as more trustworthy if he admitted the crime, was remorseful and repentant, and accepted responsibility. If he did molest the girl, and still denies it, one can hardly say that he has been rehabilitated.
Your Ethics Alarms Ethics Quiz of the Day:
Should Luke Heimlich be allowed to play college baseball?
1 Oh, let’s begin the day with Roy Moore, the former Alabama judge and present wacko whom Alabama Republicans voted to represent the GOP in the 2018 U.S. Senate election, thus proving that there are a lot of deplorables in the state. As was completely predictable given his record, Moore recently told his drooling followers (after being introduced by Abraham Hamilton, Alexander Lincoln being unavailable),
“Somebody should be talking to the Supreme Court of the United States and say, ‘What gives them a right to declare that two men can get married?. . . Tell the Congress: Impeach these justices that put themselves above the Constitution. They’re judicial supremists and they should be taken off the bench.”
So Moore believes that he should not have been removed from the bench for putting his personal religious beliefs above the Constitution, but justices should be removed if they interpretation the Constitution in a way that contradicts his religious beliefs. This, he insisted, would ‘solve the problem….such a view would violate not just fundamental principles of judicial review but it would violate the impeachment clause. As the last lead counsel in a judicial impeachment case (in defense of Judge Thomas Porteous), Moore’s view is deeply troubling. As I have previously written, the Good Behavior Clause of Article III was designed to protect the independence of the judiciary and insulate it from political pressures. It was meant as a guarantee of life tenure against precisely the type of threat that Moore is endorsing.
But it’s pointless to make genuine legal and historical arguments against someone like Moore. He’s a theocrat, a fanatic, a bigot and a demagogue. The Republican Party should endorse his opposition and campaign against Moore. This fiasco is their fault, and someone like Moore should be kept out Congress at all costs.
2. Now to someone who is, incredible as it seems, somewhat less ridiculous, this gentleman, Christopher Wilson…
No, that’s not a botched tattoo on his forehead: the blurry words are “fuck” and “sluts”, making the whole, eloquent message, “I’m a porn star. I fuck teen sluts.” This roughly translates into “Look at me! I’m an idiot!” The newspapers that refused to print the blurred words (the police had the mugshot altered) that are essential to the story, meanwhile, are telling us, “We don’t understand our profession.” The story is incomprehensible if the actual words aren’t clear, literally or figuratively. Fox News and the NY Post, for example, say, “The Cincinnati man has the words “I’m a pornstar” tattooed on his forehead” and “another vulgar message” tattooed below.” Since the issue is whether the message on his FACE is going to prejudice the jury in his trial for sexual assault, this is juvenile coverage omitting key information to avoid “giving offense.”
Ethics Alarms to the news media: Grow up.
Turley (again…he loves the tattoo stories) writes,
“The court will be left with a question of whether the tattoo is too prejudicial or whether it is unavoidable as a personal choice of the defendant….Yet, these tattoos contain an admission to the crime at issue in the trial. In the end, a judge could legitimately conclude that this falls into the category as bad choices bringing even worse consequences.”
What? First, the defendant is not charged with fucking teen sluts while acting as a porn star. That conduct could well be consensual and legal. Turley is also wrong that the judge could “legitimately” allow the jury to see his message. In both cases involving a defendant’s prejudicial tattoos, the judges agreed that they had to be made invisible, in one case using make-up… Continue reading →
Texas Monthly this month has a troubling profile of Edwin Debrow, who is 37 years old, has been behind bars since he was 12, and may have to stay there until he is 52. On September 21, 1991, Debrow shot a San Antonio school teacher named Curtis Edwards in the back of the head. Edwards’ body was found sprawled across the front seat of a taxi that he drove part-time at night. Edwin, police determined, had shot Edwards during an attempted robbery. Above is the photo of the 12-year-old in custody.
Texas law, you will not be surprised to learn, allows very harsh punishment for juvenile offenders.Other states will sometimes try 12-year-olds as adults. Last year’s documentary “Beware the Slenderman” tells the strange story of Anissa Weier and Morgan Geyser, two 12-year-old Wisconsin girls who attempted to stab another 12-year old girl to death in 2014. Under Wisconsin law, Weier and Geyser will be tried as adults for attempted first-degree intentional homicide, and if convicted, they could be sentenced to up to 65 years in state prison.
Your Ethics Alarms Ethics Quiz of the Day is this:
Is it ethical for society to punish children with such long prison sentences, no matter how serious the crime?
Let’s see if this sentence generates a fraction of the national attention that the so-called “affluenza” sentence did. For this is much, much worse.
Star Stanford swimmer and Olympic swimming team candidate Brock Turner was arrested in the early morning hours of Jan. 18, 2015 when two Stanford graduate students saw him on the ground, thrusting his hips atop an unconscious, partially clothed woman. They called police; Turner ran, and police chased him down Turner. In trial, Turner claimed that the woman had consented, though police found her unconscious.
The jury didn’t believe him, and convicted Turner of assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object. The usual sentence for sexual assault is six years in state prison.Santa Clara County Superior Court Judge Aaron Persky, however, sentenced Turner to six months in county jail and three years’ probation. Turner could get out of prison after just three months.