law enforcement

Were AG Sessions’ Comments In Las Vegas Unethical?

/ Jack Marshall / 17 Comments

Ethics Scout Fred points me to a little noted episode in the increasingly fraught existence of Attorney General Jeff Sessions, and asks whether the AG’s comments crossed ethical lines.

Let’s see…

During a speech about two weeks ago in Las Vegas in which he called for harsher prosecution of criminals and cooperation from local authorities as the federal government cracks down on illegal immigration, Sessions segued to the Cliven Bundy prosecution, and said, cryptically, of Nevada Acting U.S. Attorney Steven Myhre,

“I’ve got to tell you, it’s impressive when you have a tough case, a controversial case, and you’ve got the top guy leading the battle, going to court, standing up and defending the office and the principles of the law. I’m not taking sides or commenting on the case. Just want to say that leadership requires, a lot of times, our people to step up and be accountable.”

Supporters of the Bundy-led armed stand-off with federal authorities think that the Trump administration may sympathize with their anti-government stance, but Trump administration prosecutors are still seeking penalties for Bundy and his group.

Fred notes that “while Sessions is not responsible for how others take what he says, at least no more than any public speaker,  the effect of his remarks was to encourage lawbreakers,” based on the statement by Ashley Jones, a producer for radio show host Pete Santilli. Santili, a Bundy ally, is incarcerated pending trial in the case. Jones pronounced Sessions’ comments “a victory for us.”

Comments: Continue reading →

Ethics Dunce: Attorney General Jeff Sessions

/ Jack Marshall / 22 Comments

There were many good reasons to oppose Jeff Sessions as President Trump’ nominee to be the next Attorney General. One, which I focused on, was that his nomination foolishly fed into the Democratic slur that Trump and the Republicans were racists. Sessions had been successfully tarred decades ago based on some racially-insensitive comments he had made, and even though tangible evidence of any racial bias was thin, it was foolish for Trump to court a controversy when there were plenty of equally or more qualified candidates. Another reason was that Sessions had been an early supporter of Trump’s candidacy for the GOP nomination, which is signature significance for stupidity, poor judgment or recklessness. Take your pick.

Now Sessions has announced, while speaking at a National District Attorneys Association conference, that the Justice Department will issue new directives to increase the federal government’s use of civil asset forfeiture, an unethical, Constitutionally dubious practice that needs to be cut back or eliminated.

“[W]e hope to issue this week a new directive on asset forfeiture—especially for drug traffickers,” Sessions said. “With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners.”

 

Utah’s Republican Senator Mike Lee expressed alarm at Sessions’ announcement yesterday, saying in a statment, “As Justice Thomas has previously said, there are serious constitutional concerns regarding modern civil asset forfeiture practices. The Department has an obligation to consider due process constraints in crafting its civil asset forfeiture policies.” Justice Clarence Thomas’ had written in his dissent in an asset forfeiture case last month that forfeiture operations “frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.” Continue reading →

Texas Says It Will Withhold Funds From Sanctuary Cities, And It Is The Ethical Thing To Do

/ Jack Marshall / 38 Comments

sanctuary-cities-map

Texas Governor Greg Abbott  says that the state is likely to cut off funding for Travis County after rebellious Sheriff Sally Hernandez announced it would cease cooperation with federal immigration authorities. Nationally, new Attorney General Jeff Sessions is expected to do the same with federal funds, punishing various grandstanding sanctuary cities, including the Big Apple, New York City itself.

Illegal immigration facilitating cities should have been stopped at the very beginning, but the Obama Administration, pledged to enforce  the laws of the land, allowed this defiance to continue and spread. As part of an expected, indeed promised, crackdown on illegal immigration, Donald Trump should emulate his most similar past President and take a firm stand against this virtual nullification, just like Old Hickory.

Says Professor Turley…

The coming weeks will see if these confrontations are going to worsen but the politics are not promising for compromise. That would result in the type of confrontation between federal and state authorities that we have not seen on such a large scale. There are over three dozen such cities. It could lead to some interesting constitutional challenges over conditions tied to federal funding. In 1987 in South Dakota v. Dole, the Supreme Court upheld federal conditions that withheld highway funding from cities that did not enforce the federal drinking age…. Ironically, these largely liberal cities may rely the most on a ruling against the Obama Administration. In 2012, the Court found such coercion in National Federation of Independent Business v. Sebelius, when the Court struck down a provision of the Affordable Care Act that would have blocked federal Medicaid funding to states that did not adopt a Medicaid expansion.

[ I think the professor is stretching here. A lot. If that’s the best legal precedent the sanctuary cities can muster, they are doomed to lose. ] Continue reading →

New York City And The Mayor: Case Study In The Simpson Principle

/ Jack Marshall / 20 Comments

simpson

The Simpson Principle does not refer to Homer but Alan, the now-retired Republican Wyoming Senator who once sat next to me at a press conference announcing the Reagan administration amnesty for illegal immigrants. Conservatives hated amnesty back then, too, and Simpson was regarded as a conservative. When I found myself seated next to him at lunch (my Foundation for the Chamber had done a study on immigration reform), I took the opportunity to quiz him on why he took the lead in this issue. (Those Chamber events were fun: another time, I ended up alone at a table with Gene McCarthy.)

Simpson said, as I remember it, “Well, ideology is great, but eventually you have to use real measures to solve real problems. If you keep flogging ideology when you know it won’t work, you’re a fool. It’s dumb, it’s irresponsible, and it’s wrong.”

You will note that 1) Simpson’s plan didn’t work either, though it wasn’t the plan’s fault, 2) Conservatives still oppose what they call amnesty, and yet haven’t a single rational, practical recommendation for how to handle the 13 million illegal immigrants who have slipped into the country since that Eighties luncheon chat, and 3) both liberals and conservatives have been meeting Simpson’s definition of fool lately.

[Aside: I ran into Simpson at LaGuardia last year, introduced myself and thanked him for that wisdom. He remembered me, amazingly, but didn’t remember that comment. “I said that?” he said. “Wow. I was smart that day. Thanks for reminding me of it. I wish I had run into you a few years ago.”]

One of the primary fools who is running amuck these days is Mayor Bill de Blasio, who is determined to again try the lassez faire, look the other way, “compassionate,” kinder, gentler law enforcement policies of his former boss, the infamous Mayor David Dinkins. In the 1980ss, Dinkins continued the transformation of  New York City into a declining, filthy, crime-riddled hell, and only the long, painful, much-criticized introduction of the so-called “broken window” theory into the city’s management by Rudy Giuliani turned the crisis and the city’s fate around.

As chronicled by Myron Magnet on one of my favorite blogs, City Journal, de Blasio is determined to relive the Dinkins experiment, because it would be nice if that way of running a big city works. Already, the completely predictable results are in evidence.

He writes: Continue reading →

Holder Does The Right Thing. Finally.

/ Jack Marshall / 14 Comments

forfeiture pictureFrom the Washington Post:

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred.Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing.The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.

I wrote about this outrageous abuse of government and police power in 2012. It is an ethics disgrace of long-standing; why Holder was moved to take this action now (and not his first day on the job), I can’t imagine: maybe he wanted to finally do something as he leaves Justice that makes up in some small measure for his atrocious leadership. It doesn’t matter: seldom has the phrase better late than never been more apt. I’ll attempt to overlook the millions of dollars worth of property stolen from innocent citizens by the government over the last six years and give Holder his due now. He did the right thing.

Finally.

Comment of the Day: “Ethics Dunce: Columbia, South Carolina Police Chief Ruben Santiago”

/ Jack Marshall / 5 Comments

A few quick points, before I present Chris Marschner’s excellent Comment of the Day:

  • You know you’re posting too much when a you’ve completely forgotten an essay less than a month old, like this one.
  • Why didn’t someone tell me that I left the “l” out of “Columbia”?
  • I’m going to have to start working on my proof-reading again, clearly. There were a couple more typos in this post.
  • Chris just started commenting, and this is the third carefully written, well-reasoned substantive piece he has produced. I am grateful; such debuts raise everyone’s game.
  • I liked this post, and not many people read it or commented on it. I am increasingly worried about the trend in law enforcement and in government generally, especially the schools, to brush off free speech as an inconvenience. I’m grateful to Chris for raising the issue again.

Here is his Comment of the Day on the post, “Ethics Dunce: Columbia, South Carolina Police Chief Ruben Santiago”: Continue reading →

Ethics Dunce: Columbia, South Carolina Police Chief Ruben Santiago

/ Jack Marshall / 9 Comments
The face of police power abuse in Columbia, S.C.

The face of police power abuse in Columbia, S.C.

If our culture did a minimally competent job communicating the essential right of free speech in the United States, people like Ruben Santiago wouldn’t think as the do—as they do being best described as ignorantly, censoriously, arrogantly and stupidly. Both the Left and the Right are to blame for the message not getting out to the public, and, consequently, members of the public who acquire governmental authority: the government can’t threaten you or harm you for mere speech…the Left through its attempts at political correctness, mind control and indoctrination in the schools, the Right in its efforts to use laws to curb expression involving sex and violence in the arts and entertainment.

In Columbia,Police Chief Ruben Santiago took to the Columbia Police Department Facebook page to announce that his officers had seized  $40,000 in marijuana from an apartment after a successful drug investigation. Citizen Brandon Whitmer, on his own page, took note of the arrest and opined, “maybe (police) should arrest the people shooting people in 5 points instead of worrying about a stoner that’s not bothering anyone. It’ll be legal here one day anyway.” Santiago replied ominously to Whitmer, saying, “(W)e have arrested all of the violent offenders in Five points. Thank you for sharing your views and giving us reasonable suspicion to believe you might be a criminal, we will work on finding you.”

Somebody  in the department with a working knowledge of the Constitution quickly got that post deleted, but Santiago defended it in a double-down post, writing, Continue reading →

When Worlds Collide: Maryland’s Attorney General Doug Gansler Flunks His Ethics Test

/ Jack Marshall / 20 Comments

Maryland Attorney General Doug Gansler (D) is running to be his party’s nominee for Governor, which, since Maryland is one of the Bluest of states, means that success equals the statehouse, or should. But the intense spotlight that such a quest creates can be hot and unflattering, and Gansler’s character and integrity is now being called into question…especially after this photo from last summer surfaced on Instagram, showing Maryland’s top law enforcement official in the middle of a wild teen beach party at a beach house by the Delaware shore. He’s the guy in the white shirt and the cell phone:

Gensler Party

There you have it: the exact moment when Attorney General Doug Gansler, Candidate for Governor Gansler and Father of a Teenage Son Who Graduated From High School And Wants To Party With His Friends Like In “Animal House” Gansler officially collided. Many, especially many Democrats, especially many Bill Clinton fans, and definitely aspiring toyboy lawyer Brian Zulberti, would argue that only one of them is really there: Father Doug. The others, being absent, are immune from criticism. This position is popular, convenient, lazy, ethically corrosive and wrong. There is only one Doug Gansler, yes, but he is bound by three standards of conduct. When you are bound by three standards of conduct, you have to abide by the highest one.

Again, this situation focuses our attention on integrity, a core aspect of character, and crucial to ethics. Does an individual have genuine principles that he oe she lives by, or a constantly shifting set of values that are assumed and then discarded according to situation, convenient, strategy and whim? When an ethical problem arises, do others know how the individual will respond? Are his words consistent with his actions? Trust means that others can rely on an individual’s conduct, and you can’t rely on the conduct of someone whose values and priorities with the wind, locale, attention and personal desires.

Then there is the issue of judgment. Judgement is like intelligence and common sense: an individual either has it, or he doesn’t. And such traits as responsibility, accountability, honesty, prudence, dignity, loyalty  and courage come into play. I know those who embrace the private individual/professional dichotomy are stuck with the argument that the absence of  one or more of these in a private setting has no predictive value regarding public or professional conduct, but it is a hopelessly untenable position, pure denial, and ethics poison. Continue reading →

Hindsight Bias Case Study: Shooting D.C.’s Post Partum, Mad-Dog Driver

/ Jack Marshall / 17 Comments
"Ok, now, let's talk about this: what other options do we have to stop this mad-dog driver, other than shooting her? Ma;'am, will you pleas take 5 in your murderous rampage while we meet? Ma'am?"

“Ok, now, let’s talk about this: what other options do we have to stop this mad-dog driver, other than shooting her? Ma;’am, will you pleas take 5 in your murderous rampage while we meet? Ma’am?”

Hindsight bias isn’t the worst or most pernicious reasoning fallacy, but it may be the most annoying, and is certainly the most common. After an event in which one or more instant decisions had to be made in seconds or minutes, critics with time a-plenty solemnly explain how they would have done things differently, and how the original decision-maker was stupid, cowardly, misguided, incompetent, unethical, or even criminal. The most striking example of a hind-sight bias victim in recent years is Penn State’s Mike McQueary, but at least in his situation there is room for argument, though I argued here that few of his critics can know how they would have responded under similar circumstances. In the case of this week’s shooting of a crazed Capitol Hill kamikaze motorist, later determined to be a troubled dental hygienist who may have been suffering from post-partum depression, I don’t think the criticism is rational, fair or justified, and shows hindsight bias at its worst.

 

Of course the Secret Service had to shoot her. It would have been reckless and negligent had they not. She had tried to crash through the White House barricades in an automobile. She had run down one officer, for all anyone knew at the time, fatally. She was refusing to stop, and was near D.C.’s Union Station, where there are people everywhere, and a car can easily run up on the sidewalks, which are wide. She had to be stopped immediately, or innocent people, maybe many people, were likely to die.

After she expired from the shots fired at her (but not before peeling away at a high speed), it was determined that the driver, later identified as Miriam Carey, was unarmed. The shooting agents didn’t know that, so it’s irrelevant. Besides, she was armed, with a deadly vehicle, and her motives were unclear. For all the officers knew, she was trying to kill as many pedestrians as she could. This wasn’t a typical situation or traffic stop. This was occurring at the center of our government, and security officers have to take enhanced precautions. The welfare of the individual causing the threat is not, and should not be, the primary concern.

Two factors in the incident seem do drive the unethical amateur second-guessing. One was that the woman’s toddler was in the car, and might have been harmed. This was not the Secret Service’s problem. Carey put her daughter in harm’s way, and if her conduct resulted in the child’s injury or death, she would have been totally responsible, not the agents who shot into the car. (They apparently were not aware of the child’s presence, so again, this in not a fair factor to consider after the fact.) The other factor: guns were involved. Thanks to programmed paranoia and gun-phobia irresponsibly planted in the culture by anti-gun zealots, many, too many, Americans arrive at a reflex position that any gun-related death is unnecessary, because guns, after all, are evil and should be banned. Such opinions should be treated as the products of deranged minds, or excessive Piers Morgan viewing.

A Facebook friend (and regular friend too), a distinguished and intelligent former journalist who I’m sure won’t mind my quoting him, asked his social network, “WAS THERE NO OTHER WAY?” That question is the epitome of hindsight bias. Sure there were other ways. Maybe an agent could have dived in the car window and dislodged her. Maybe a well-aimed shot at her hands could have made it impossible to drive. Perhaps they could have shot out the tires, hoping that the driver didn’t realize that you can still make a car with flat tires move at a pretty good clip, at least for a while. An electro-magnetic pulse might have stopped all the engines in the vicinity, neutralizing the car. Maybe Batman was nearby, or Corey Booker. None of that matters, because the security officials involved were in a unique and unprecedented situation, and had to accomplish their prime objective, stopping a dangerous individual in a highly populated area, under pressure, while in peril themselves, as quickly as possible. The proper question is not whether they could have done better, upon calm analysis and reflection. The question should only be, “Was the response reasonable under the circumstances?”

It was.

________________________________

Sources: Washington Post 1, 2

A Prosecutor Lies, But It’s For A Good Cause…

/ Jack Marshall / 7 Comments
Yes, Jack McCoy would probably be disbarred in the real world...

Yes, Jack McCoy would probably be disbarred in the real world…

Aaron Brockler, an assistant Cuyahoga County (Ohio, including Cleveland) prosecutor, was fired last month for  using a false identity on Facebook  to try to influence the testimony of  defense witnesses in a homicide case.

He initiated Facebook discussions with two women listed by the defense as alibi witnesses in a murder prosecution. Brockler pretended to be a former girlfriend of the defendant who had a child fathered by him, and urged the witnesses not to “lie for him.”  County Prosecutor Timothy J. McGinty fired Brockler, who by my count violated at least Ohio legal ethics rules 3.4, 3.7, 3.8, 4.1, 4.2 and 8.4, (tampering with evidence, suborning perjury, becoming a necessary witness, prosecutorial misconduct, misrepresentation of facts, contact with a person represented by counsel and dishonesty) and perhaps some others. Prosecutors are not allowed to tamper with defense witnesses, or try to influence any witness testimony. They are not permitted to contact represented parties in connection with a prosecution, unless the lawyers are involved. They are not permitted to lie or pose as someone they are not over the internet. They are not permitted to make themselves witnesses in their own cases. Brockler wasn’t just fired for cause, he was fired for multiple causes, any one of which would have justified kicking him out the door. Continue reading →