law vs ethics

McCoy v. Louisiana

/ Jack Marshall / 30 Comments

Today the Supreme Court ruled in favor of Robert LeRoy McCoy, who was convicted of three counts of murder after his lawyer refused to follow his instruction and plead not guilty as he directed. I had predicted that his convictions would be over-ruled; I also wrote,

“If the Supreme Court does anything but overrule Louisiana in this case by a 9-0 vote, I may turn in my law license in exchange for a free Whopper at Burger King.”

Well, the vote wasn’t 9-0. I think instead of turning in my license, I’m going to turn in my respect for the so-called conservative wing of the Court. The majority opinion was authored by Justice Ginsberg, with Kagan, Sotomayor, Breyer, Roberts, and Kennedy concurring. Two of the conservatives concurred in a dissent authored by Alito: Gorsuch and thomas.

I haven’t had time to read it as carefully as I have to to do a thorough analysis, but I read it well enough to flag it as an embarrassing collection of rationalizations. While the majority opinion interprets a straightforward case according to what is significant about it—a lawyer pleaded guilty for him when his client demanded that he plead non guilty, thus making the conclusion unavoidable, Alito resorts to desperate excuses. Well, this kind of case isn’t likely to happen again. So what? A man was robbed of his Sixth Amendment rights! His story was ridiculous. So what? If that’s his story, he has the right to tell it. The lawyer was placed in a tough situation by a client whose claims were unbelievable. The jury decides who to believe, and a defendant has the right to let them do that. McCoy’s lawyer didn’t believe him. So what? Welcome to criminal defense work. McCoy was going to be convicted anyway.

What????

I can’t believe a Supreme Court Justice is making these arguments. So what? The principle of the rule of law is that it is vital that the defendant, if he is convicted, is convicted the right way, constitutionally. The conduct of McCoy’s lawyer was indefensible under the ethics rules, and the Constitution.

Reading the whole opinion and the dissent is revealing, and not in a good way. The majority opinion shows us that the Supreme Court can’t say the sky is blue without making the case in the mots turgid way possible. This opinion should have been a few pages at most.

The dissent lets us know that Justices Alito, Gorsuch and Thomas look for minuscule fragments of justifications to avoid doing the right thing.

 

Morning Ethics Warm-Up, 4/24/18: Presidents, PETA, Privilege, Penn State And Pedophiles

/ Jack Marshall / 56 Comments

Good Morning.

It just feels like a gliddy glup gloopy nibby nabby noopy kind of day…

1. Musings on the illness of George H.W. Bush. Perhaps I am over-sensitive, but I found the long segments and speculation on cable news this morning about George H.W. Bush suffering from “broken heart syndrome” sensational, intrusive, and wrong. The man is 93, and he’s suffering from a blood infection. As my Dad said often after his 80th birthday, and eventually proved, when one is 80 or more. you can drop dead at any moment, for any reason. Yes, we all know of long-time married couples of advanced years who perish in close proximity. However, the “broken heart syndrome” is anecdotal, without clinical proof, and, essentially, fake news with a romantic tinge.

[Pointer: valkygirrl]

If vile people like Professor Jarrar will attack Barbara Bush when she dies, imagine what George H.W. Bush has in store. The elder Bush is near the bottom of my Presidential ranking, in the general vicinity of his son, Jimmy Carter and Barack Obama but The Ethics Alarms position is that every single President of the United States is owed respect and a debt of gratitude for accepting the overwhelming challenges of the job, and doing, in every case, what he felt was in the best interests of the nation. Before Harry Truman, even taking away the assassinations from the mix, the Presidency was regarded, accurately, as a killing job, with more Presidents than not dying soon after leaving office. That’s not true any  more, but the job is still a terrible physical, emotional and mental burden. The first words out of any American’s mouth when a former President is ailing should be “You have the best wishes of the nation,” and the first words when any former President dies should be “Thank you.”

2.    And this has to do with “collusion” how?  The raid on President Trump’s fixer Michael Cohen revealed that Fox News host Sean Hannity owns millions of dollars worth of real estate across several states, with  links to several shell companies that bought $90 million on 877 residential properties. This is all confidential information, and should never have been jeopardized by the Special Counsel’s effort, coordinated with New York State prosecutors, to gather as much dirt on President Trump as possible—all the better to impeach him with. That this information was leaked to the press indicts the investigation, the process, the judge who allowed the  fruits of the raid unrelated to Trump to be obtained, and the lawyers involved. Of course, the fact that Cohen had these records also rebuts Hannity’s claim, obviously disingenuous from the start, that he wasn’t Cohen’s client, but never mind: Hannity should not have been placed in the position where there was anything to deny.

[Pointer: philk57] Continue reading →

Ethics Quiz Of The Day: The Two-Way Peanut Butter Treat…Ick Or Ethics?

/ Jack Marshall / 21 Comments

Described in news reports as a “baffling oversight,” Canada only bans bestiality if it involves penetration. This means that there is a lot of oral sex going on between humans and moose, or something, so while reminding her colleagues that a Canadian sex freak  used this very loophole to escape conviction last year, Calgary MP Michelle Rempel has introduced Bill C-388 to add one line to the Criminal Code defining bestiality as “any contact by a person, for a sexual purpose, with an animal.”

This of course, would mean that doing business with Harvey Weinstein would be illegal in Canada.

Said Rampel in a statement, “I am disturbed that the government has not yet corrected this glaring void in our criminal code….This is a non-partisan issue.”

Ah, but is it a stupid issue? Or an ethics issue?

Your Ethics Alarms Ethics Quiz of the Day is this vital question:

Is it unethical to spread peanut butter on your genitals and then encourage your pet Newfoundland to lick it off?

Continue reading →

Wait, WHAT? I Don’t Understand This Case At All: The Louisiana Lawyer’s Betrayal

/ Jack Marshall / 40 Comments

Robert McCoy (above), facing trial for a triple murder in Louisiana, told his lawyer, Larry English, that he was innocent. Someone else had killed the victims, he insisted. English, however, knew better. He wasn’t buying any of it.

“I met with Robert at the courthouse and explained to him that I intended to concede that he had killed the three victims,” Mr. English stated in a sworn statement. “Robert was furious and it was a very intense meeting. He told me not to make that concession, but I told him that I was going to do so….I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims,” Mr. English said. “But I believed that this was the only way to save his life.”

English’s theory was that in the state’s two-phase trail system, he would lose credibility with the jury if he insisted McCoy was wrongly charged in the face of overwhelming evidence He wanted to have the trust of the jurors in the second phase, when he would have to argue that they should spare Mr. McCoy’s life.

After the meeting, Mr. McCoy tried to fire his lawyer, saying he would rather represent himself—So would I— but Judge Jeff Cox refused to let English off the case. So, as promised, English told the jury during his opening statement that his client was a triple murderer. McCoy objected in court, protesting, “I did not murder my family, your honor ! I had alibis of me being out of state. Your honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out.”

The objection was over-ruled.  McCoy’s lawyer, the judge apparently believed, knew better than his client what his client’s best interests were.

He didn’t though. McCoy was convicted and sentenced to death despite all of that supposed good will, credibility and trust English had built up by throwing his own client under the criminal justice bus.  The victim of this Bizarro World representation appealed the conviction to the Louisiana Supreme Court, saying his lawyer had turned on him. The court ruled against him,  holding that

“Given the circumstances of this crime and the overwhelming evidence incriminating the defendant admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.”

Now the United States Supreme Court is going to consider the case, McCoy v. Louisiana, and the question of whether a lawyer who disregards a client’s explicit instruction to plead not guilty has breached the Constitutional right to counsel.

I am stunned.  What question? Apparently this is a thing in Louisiana. “Counsel’s strategic choices should not be impeded by a rigid blanket rule demanding the defendant’s consent,” Louisiana’s lawyers  wrote in a brief urging the court to pass on the case. Since 2000, the Louisiana Supreme Court has allowed defense lawyers to concede their clients’ guilt in four other capital cases over the clients’ express objections.

Good grief. Continue reading →

Morning Ethics Update: 8/10/17

/ Jack Marshall / 76 Comments

Good Morning!

1. Less than two weeks after social justice bullies on social media chastised actor Mandy Patinkin for agreeing to take the place of a black actor in Broadway’s “Natasha, Pierre & The Great Comet of 1812,”  causing the politically impeccable Mandy to withdraw with humble mea culpas, and the “woke” creator of the  the Tony winning musical to humbly kowtow to the new show business principle that it is better for a show to close entirely, putting everyone out of work, than for a white actor to take over a role from a black actor who took over the role from a white actor in the first place, “The Great Comet’s” producers announced that the show will close in September.

Good job, everybody!

Morons.

2. First Amendment incursions are creeping in from all sides and all angles so fast it’s hard to slap them down. Cowboy Joe West, the major leagues’ longest-serving umpire,was just suspended for three days for comments he made a in an interview with USA Today published on June 20, to mark   the umpire’s 5,000th regular-season game. Asked which player beefed most frequently about his calls, West said “it’s got to be Adrian Beltre.” Beltre, who recently punched his own ticket into the Hall of Fame by getting his 3000th hit, is apparently something of a human Bermuda Triangle for ethics controversies.

“Every pitch you call that’s a strike, he says, ‘Whoa! Whoa! Whoa!,'” West was quoted as saying.  “I had a game with him recently and the pitch was right down the middle. He tells me, ”That ball is outside.’ I told him, ‘You may be a great ballplayer, but you’re the worst umpire in the league. You stink.'”

MLB suspended West for three days, telling the umpires union in a letter that the discipline was in response to an “appearance of lack of impartiality.” Beltre has said that he never assumed West was being anything but facetious. The umpires union is livid, and West is likely to file a grievance.

There are two theories about this strange episode in the Marshall household. I think it’s more evidence of slippage on the societal slope to speech suppression. My wife thinks baseball is laying the groundwork for replacing umpires on balls and strikes with robo-calls. After all, robots aren’t biased.

I hope she’s right, but I doubt it.

3. Why don’t Democrats want to clean up eligible voter rolls?the Justice Department filed a Supreme Court amicus brief  supporting the state of Ohio as it fights to defend its law that purges names from voter rolls if  those names aren’t attached to votes for a significant period. This reverses the Obama Administration’s position, which backed a lower court decision  that it ran afoul of the 1993 National Voter Registration Act.

Why does Ohio want to de-register voters who don’t vote for two years, then are sent notices asking that they confirm their voter registration, don’t respond to the notices ,and continue to not vote for another four years? I assume it is because the state doesn’t want dead people on the voter rolls. Why do Democrats want the names of dead people listed as eligible voters?

I’ll leave that to your imagination… Continue reading →

Morning Ethics Warm-Up: 8/4/17

/ Jack Marshall / 49 Comments

Good Morning!

1. An update to the Michelle Carter fiasco from Taunton, Mass., where the judge in the case discussed here sentenced the young woman to 15 months in jail for her supposedly deadly words, which “made” her boyfriend commit suicide. This classic example of the axiom “hard cases make bad law” provides the censorious camel’s nose access to the tent for advocates of  the criminalization of “hate speech,” opposition to climate change propaganda, and the gradual castration of freedom of speech. Carter should have never been charged or tried; doing so was an abuse of process, prosecutorial ethics and judicial ethics. I strongly suspect that the judge knows the case will be reversed on appeal as unconstitutional, hence his decision to stay the sentence, allowing Carter to remain free while her case winds its way to the Supreme Court. Meanwhile, her life will be stalled, and completely absorbed by the consequences of her texts urging teen Conrad Roy III to act on his expressed desire to kill himself, which he did. This is her real punishment, because the sentence will not and must not stand.

It is unethical to use the legal system this way. When the government takes it upon itself to punish citizens despite the absence of applicable laws, it is treading over the line dividing democracy from totalitarianism.

2. What is to be done about California? States have always maintained their own unique cultures, and that is a national strength. When a state’s culture becomes wholly estranged from and hostile to the values and principles of the nation it belongs to, however, it becomes a danger to that nation and perhaps to its citizens. What, if anything, is the responsibility of the federal government when this happens? What is the duty of the state’s elected officials?

Tucker Carlson’s creepy interview on Fox with a leader of the California secession movement,Shankar Singam, raised these questions and more. Among Singam’s jaw-dropping positions was that the documented exodus of middle class Californians and small businesses from the state was a good thing. “If everyone in the middle class is leaving, that’s actually a good thing. We need these spots opened up for the new wave of immigrants to come up. It’s what we do,” Singam told Carlson. He also told Carlson that “This is California. We’re not the United States.”

At least that settles the question of whether Hillary Clinton won the popular vote.

An ethical, responsible, loyal American governor would recognize the danger inherent in allowing his state to see itself as separate from the rest of the country, and actively work to reverse that dangerous trend and attitude. That governor is not Jerry Brown. Continue reading →

Law vs. Ethics In Baseball: The Great On-Deck Circle Controversy!

/ Jack Marshall / 37 Comments

What’s going on here?

During last night’s Texas Rangers, in a crucial moment with the bases loaded, Rangers third baseman Adrian Beltre, waiting for his turn at bat,  suddenly turned up within a few of yards of home plate, watching a pitcher he wasn’t familiar with to give Beltre an edge when he got to the plate. Baseball’s rules, however, require that the next batter remains in the on-deck circle provided, which is closer to the dugout and not behind home plate. Reasons for this include making sure that on-deck batters don’t interfere with play, can’t relay stolen signs to the batter, and aren’t killed by foul balls.

The home plate umpire called time and told Beltre to get back in the on-deck circle. Beltre then moved the on-deck circle to where he had been standing.

The umpire threw him out of the game, and rightfully so. Continue reading →

From The Law vs Ethics Files: The July 24, 1983 Pine Tar Incident, When Baseball Chose Ethics Over Law, And Was 100% Wrong

/ Jack Marshall / 25 Comments

I have written on this topic before, but this is the famous incident’s anniversary, and I have come to believe that the lesson learned from  the pine tar incident is increasingly the wrong one, and the consequences of this extend well beyond baseball.

On July 24, 1983, the Kansas City Royals were battling the New York Yankees at Yankee Stadium. With  two outs and a runner on first in the top of the ninth inning,  Royals third baseman George Brett hit a two-run home run off  Yankee closer  Goose Gossage to give his team a 5-4 lead.  Yankee manager Billy Martin, however, had been waiting like a spider for this moment.

Long ago, he had noticed that perennial batting champ Brett used a bat that had pine tar (used to allow a batter to grip the bat better) on the handle beyond what the rules allowed. MLB Rule 1.10(c) stated: “The bat handle, for not more than 18 inches from the end, may be covered or treated with any material or substance to improve the grip. Any such material or substance, which extends past the 18-inch limitation, shall cause the bat to be removed from the game.” At the time, such a hit was defined in the rules as an illegally batted ball, and the penalty for hitting “an illegally batted ball” was that the batter was to be declared out, under the explicit terms of the then-existing provisions of Rule 6.06.

That made Brett’s bat illegal, and any hit made using the bat an out. But Billy Martin didn’t want the bat to cause just any out. He had waited for a hit that would make the difference between victory or defeat for his team, and finally, at long last, this was it. Martin came out of the dugout carrying a rule book, and arguing that the home run shouldn’t count.  After examining the rules and the bat, home-plate umpire Tim McLelland ruled that Brett used indeed used excessive pine tar and called him out, overturning the home run and ending the game.

Brett’s resulting charge from the dugout (above) is video for the ages. Continue reading →

Ethics Observations On The Florida Teens And The Drowning Man

/ Jack Marshall / 50 Comments

The story from Florida about the five teenage boys who took a video of a man who drowned as they laughed and mocked him, never calling for help or alerting authorities, isn’t one of the apathetic bystander episodes that Ethics Alarms has discussed in the past. This is something worse, an episode that raises troubling questions about what kind of culture and society could produce young men so cruel and callous. One has to wonder how society can trust these young men, so obviously devoid of ethics alarms or conscience at such a young age….except that most of us will never know who they are, since their names have been withheld from publication because they are minors.

Meanwhile, the basic ethics question “What’s going on here?” is especially difficult. The episode naturally sparks such an emotional response that reason and analysis have a hard time clawing their way to the front. I’ve been pondering the story since it was publicized, and I still find it disorienting.

Here are some comments and observations, perhaps more random and disjointed than they ought to be: Continue reading →

From The “Law vs Ethics” Files: PETA Chooses To Harm An Artist On Behalf Of A Monkey Who Couldn’t Care Less, And Judges Think It’s An Amusing Legal Condundrum

/ Jack Marshall / 26 Comments

“I’m baaaaack!”

When we last heard from  photographer David Slater, the U.S. Copyright Office had rejected his claim that he owned the  copyright for the famous series of selfies presumably taken unintentionally by a Celebes crested macaque.  In 2011,  Slater spent several days following and photographing a troop of macaques in Sulawesi, Indonesia, and the selfies were a lucky bi-product that quickly became a web sensation. Slater had asserted ownership over the photos, and had demanded that various on-line users, such as Wikipedia, either take them down or pay him as the copyright holder. The ruling of the Copyright Office was based on the theory that Slater had not taken the photo, so he was not the creator, and animals couldn’t own copyrights, so the photos were in the public domain.

Pop Ethics Quiz: Would it have been unethical had Slater simply released the photos without revealing that the selfies had been the lucky result of an  accident, snapped by the monkey while it was messing around with his equipment?

About the Copyright Office’s ruling: I’m dubious. Slater owned the equipment, and had the sense to preserve the photos. A decision that if a photo is taken accidentally by a non-human or an act of God, the photographer who owns the equipment gets the copyright would have been fair.  Zapruder owned the film that inadvertently caught President Kennedy having his forehead shot off, and it made him rich. Slater’s claim just goes a step further: Zapruder left the street  to buy a hotdog, put his camera on on a trash can and asked a friend to “watch it,” and a dog turned the camera on, catching the grisly scene. So Zapruder doesn’t own the film anymore? Does that make sense to you?

Well, that was the ruling anyway. Then things got really ridiculous. Slater included the monkey selfies in a book, and People for the Ethical Treatment of Animals (PETA)  brought a law suit against Slater on behalf of the monkey,which PETA claims is named Naruto, and asked that PETA be appointed to administer proceeds from the photos for the benefit of Naruto and other crested macaques in the reserve on Sulawesi. So PETA would suddenly be the de facto copyright holder. Continue reading →