The “Too Handsome To Rape” Defense

March 31, 2014March 31, 2014 / Jack Marshall / 31 Comments

Sharper, Mathis, Ted Bundy.

For whatever reason, there have been a lot of attacks on the legal profession lately—and some from within the legal profession—because of so-called “disgusting” and “frivolous” arguments by lawyers who are zealously representing their clients. These range from outrage over the so-called “affluenza” defense (which, it apparently does no good to point out, was explicitly rejected by the judge in that case), to the law suit against the Glendale, California memorial to women forced into sexual slavery by the Japanese in World War II, to the argument that Red Sox broadcaster Jerry Remy was complicit in his son’s allegedly murdering his girlfriend because Remy hired a lawyer who mounted a vigorous defense in the son’s earlier domestic abuse arrests.

Lawyers are ethically obligated to advance whatever non-frivolous arguments and theories that are most likely to achieve their clients’ objectives, whether it is avoiding prison or rationalizing the crimes of the Japanese army. That is their job and societal function, and it is essential to our avoiding a jack-boot system where any of us could be thrown in jail by popular opinion or government edict. The laws are there to be used by every citizen, even when the citizen’s objectives are unethical, or when the citizen is a cur.

Our rights are all protected well by this principle, and it’s high time we stopped bitching about it.

Undeterred by this, however, yet another defense attorney is being savaged in the news media and blogosphere, as well as by women’s rights advocates, for making an argument in defense of his client that they find offensive. In Georgia, Darriuos Mathis and his legal team are making the argument, among their efforts to show that the evidence against him is not sufficiently conclusive, that Mathis is too attractive--fit, handsome, sexy– to have to resort to kidnapping and raping a 24-year-old woman two years ago, which is what he charged with.

Continue reading →

Jerry and Jared Remy, Parental Accountability, Hindsight Bias, and The Bad Seed

March 29, 2014 / Jack Marshall / 26 Comments

This is a tragic local story with vast ethics significance.

Father and son.

Long-time Boston Red Sox broadcaster Jerry Remy, a native Bostonian and former player who has been a vivid part of the Boston sports scene since 1977, was stunned by tragedy last summer when his oldest son, Jared, 35, allegedly murdered his girlfriend by stabbing her to death as their ive-year-old daughter looked on. Prior to the incident, most New Englanders were unaware of Jared Remy’s problems, but his ugly past soon found its way into the newspapers.

A recent Boston Globe investigative report appeared to be the saga of a “bad seed” right out of a horror movie, for Jared Remy, son the popular, affable Jerry, had been arrested, and released, 19 times, for an assortment of alleged crimes, many of them violent. They included battering and threatening a high school girlfriend; pushing a pregnant girlfriend out of a moving car; texting death threats to her, and attempting to beat her up; threatening to kill yet another girlfriend; terrorizing a fourth sufficiently that police were called to their apartment eight times; and involvement in steroid peddling and abuse. The Globe also obtained the testimony of a woman who alleges that Jared joined her in brutally beating a high school boy, causing him permanent brain injuries.

The Globe story (and others) raised the question of how and why the Massachusetts justice system kept releasing Jared. It is a valid question, not peculiar to his case, unfortunately. Many have speculated that Jared’s status as the son of popular Boston sports figure played a part in getting him extraordinary leniency, but as Remy’s lawyer pointed out, several of the incidents also involved complainants and alleged victims who refused to testify or withdrew their complaints. In the realm of domestic abuse, evidently Jared Remy’s specialty, this is too common. The Globe writer, Eric Moskowitz, also insinuated that the Remys went too far in supporting their disturbed, violent and troubled son, who had learning disabilities and other clinical behavioral problems. They apparently paid for psychiatric treatment, counseling and legal fees, and helped with his rent and other expenses, though the extent of this has not been confirmed by the Remys, the only ones who could be authoritative on the topic. The rest is hearsay.

Jerry Remy, who has battled depression his whole adult life, withdrew from his role as color commentator after his son’s arrest, missing the Red Sox championship run. Outside of a brief statement condemning his son’s actions and expressing condolences to the parents of the victim, Jennifer Martel, Remy was silent until announcing this Spring that he would try returning to the broadcast booth for the upcoming season. Then, as Spring Training for the Red Sox ran down and Remy seemed, outwardly at least, capable as ever of being an affable presence with whom to watch the home team’s exploits, the Globe story appeared. The revelations about Jared unleashed an unexpected (by me, at least) backlash against his father, and Bostonians in droves bombarded the sports radio talk shows, blogs and news media websites with the opinion that Remy should step down as Red Sox color man for cable broadcasts. How they reached this ethically indefensible position is instructive regarding how inept and unskilled most people are in day-to-day ethical analysis, how emotion becomes a substitute for objectivity and logic, how hindsight bias makes experts and judges out of individuals with the credentials of neither, and also how ignorant most of the public is about the ethical obligations and duties of the legal profession.

Here are the reasons being cited for why Jerry Remy should give up his career:

Continue reading →

Lawyer Daniel Muessig’s Clever, Effective, Legally Ethical And Thoroughly Despicable Ad

March 7, 2014 / Jack Marshall / 13 Comments

Just as I’ve been desperately trying to explain that lawyers do not represent bad people because they like them or want to loose them upon the world, here comes innovative Pittsburgh lawyer Daniel Muessig, whose clever TV ad proclaims that this is exactly what he wants to do. Here it is:

Is this an ethical ad? According to the Pennsylvania Rules of Professional Conduct, it is within the conduct permitted by the state’s legal ethics rules. The ad isn’t misleading. It doesn’t make promises the lawyer cannot keep. It doesn’t represent dramatic recreations as fact, or use broad metaphors and exaggerations. (Lawyer ads are held to a standard of literalness that presumes the public has never see any other kinds of advertising in their entire lives.) Once upon a time the various state bar advertising regulations included prohibitions on “undignified” communications, or those that undermined public trust in the profession, but those days are long past: the standards were necessarily vague, and breached free speech principles.

So we have this: a lawyer who appeals to his future criminal clients by saying that he thinks like a criminal, believes laws are arbitrary, that other lawyers will “blow them off” and that he visits jails frequently because that’s where his friends are. He attacks his own colleagues and profession, denigrates the rule of law he is sworn to uphold, and seeks the trust of criminals not because of his duty as a professional, but because he’s just like them. Muessig is willing to undermine the law-abiding public’s belief in the justice system and the reputation of his profession and his colleagues in order to acquire clients. I’m sure his strategy will work, too. Continue reading →

Gotcha, NPR! Liberal Bigotry About Bigotry Exposed

March 6, 2014March 6, 2014 / Jack Marshall / 25 Comments

“Wah, my conSTITuants in the great Southan state of Mawntana just don’t wanna see any coloreds get away with shootin’ owa law enforcement officahs, that’s all!”

One progressive lie I hear and read repeatedly from Democrats and their news media lackeys is that the Supreme Court “gutted” the Votingl Rights Act of 1965 by decreeing that it was unconstitutional for the Justice Department to use decades old data to presume racial bias in legislative measures and policies adopted by Southern states. This was holding in the case of Shelby v. Holder. The Court justly ruled that Congress had to develop current, accurate criteria. Progressives and the Obama Administration screamed and are still screaming, because pretending it was still Jim Crow, Bull Connor and Mississippi burning in the South gave the federal government a way to over-ride legitimate and non-racist laws (like voter ID requirements), based on bias: if it’s a southern state, it must be racist.

Yesterday, National Public Radio inadvertently demonstrated how this bias operates. I have already written about what is wrong with conservative opposition to Debo Adegbile, President Obama’s choice to head the Justice Department’s Civil Rights division. Essentially, he is being condemned for trying to protect an individual’s civil rights. But the police unions are determined to punish him because that particular individual was a cop killer, and our law enforcement officials don’t think such people have rights. They are wrong, Adegbile was right.

This is not truly a racial issue, but because Adegbile is black, because he worked for the NAACP, because the cop killer is black, because Obama is black and because Democrats have spent the Obama years making everything about race to serve their cynical political needs, the controversy has been reported as a racial justice issue. It is really a stupidity issue, as I pointed out in my earlier post. It is stupid, ignorant and destructive to treat criminal lawyers as if they support the crimes of their clients.

The police lobby was strong enough, sadly, to defeat Adegbile’s nomination in the Senate, as sufficient Democrats from conservative states decided to cater to ignorance as enthusiastically as their Republican colleagues. Here are the Democratic Senators who voted “nay”:

Chris Coons (Del.)
Bob Casey (Pa.)
Mark Pryor (Ark.)
Heidi Heitkamp (N.D.)
Joe Manchin (W.V.)
Joe Donnelly (Ind.)
John Walsh (Mont.)

Plus Harry Reid (Nev.), who switched his vote for tactical purposes.

Here is how NPR described them on NPR’s Morning Edition :

“A handful of southern Democrats joined Republicans yesterday to defeat president Obama’s choice to head the Justice Department’s civil rights division.” Continue reading →

Legal Ethics Quiz: The Bean Bag Tossing Defense Lawyer

March 4, 2014March 4, 2014 / Jack Marshall / 21 Comments

” I swear, you can do this in court. I saw it on “Ally McBeal”…

Holy crap! Here is a courtroom stunt you don’t see everyday…or ever.

The dramatic bribery trial of Rhode Island defense lawyer Donna Uhlmann and co-defendant Jamaal Dublin took a hard left turn into “Boston Legal” territory and beyond with the, well, creative closing argument of Dublin’s lawyer, Christopher T. Millea. It was so creative, he was nearly held in contempt of court.

“You see, all of this has to do with the throwing of feces,” said Millea, cleverly reminding the jury of the bizarre conduct of a key state witness who once threw his own excrement at a prison guard. “The state wants to throw as much against the wall to see what sticks, just like Michael Drepaul throwing his feces …”

With that introduction, Millea took two bean bags out of a box he had placed in front of the jury, and threw them at the courtroom door. Then he retrieved the turd stand-ins and placed them in another box near the door, and placed that box next to the one in front of the jury, which, it was later discovered, read “Reasonable doubt,” though only the jury could see the words. The first box was labelled, “State’s case.” Continue reading →

The Comfort Women Memorial Lawsuit: A “Disgusting” Legal Argument, Perhaps…Unethical, No

March 2, 2014March 2, 2014 / Jack Marshall / 33 Comments

The Glendale Comfort Women Memorial

The large and respected law firm Mayer Brown has taken the ugly case of some Japanese-American clients who want the city of Glendale, California to remove a memorial to World War II “comfort women” from a public park. In doing so, and in the way it is proceeding, the firm has inspired harsh condemnation from two estimable legal commentators, both First Amendment champions: Marc Randazza, and Ken White. Their objections, which caused Randazza to call the firm “the least honorable law firm in the world,”and White to conclude, “This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences,” are heartfelt, but, I think, misguided. Their argument, beside arguing that the lawsuit is frivolous, is best articulated by Randazza: Continue reading →

How Can Lawyers Be Shockingly Unethical Without Breaching Any Legal Ethics Rules? Meet Styles & Pumpian

February 26, 2014February 27, 2014 / Jack Marshall / 35 Comments

“Let’s have a moment of silence for Ira, our troubled friend, partner and colleague, a fine lawyer who left this world too soon….OK, now that’s over, how can we keep his fee from his family?”

Ira Bordow, a partner in the Wisconsin law firm of Styles & Pumpian, had been handling a family’s dispute with an insurance company. Successfully too: he negotiated a $250,000 settlement, and the company sent him the check for that amount, to be divided among the plaintiffs and Bordow’s firm. Bordow, as a partner, was going to get a $41,666 share.

The 54-year-old lawyer, however, had problems of his own that money could not solve, and committed suicide. His brother found the quarter of a million dollar check on the seat of Bordow’s Lexus coupe, and properly and correctly sent it on to Styles & Pumpian. Bordow had already earned his cut of the settlement at before he took his own life, for he, and the firm, were working on a contingent fee basis. The representation was at an end. Apparently, however, once the firm had the check in hand, the brilliant legal minds at Styles & Pumpian applied their craft to thinking of ways they could avoid paying the grieving family of their tragically demised partner any of the loot. They thought of one too, at least one they felt was worth a shot. The firm is refusing to pay the Bordow estate the late lawyer’s $41,666 cut, arguing that Bordow’s suicide in his River Hills home negated his partnership agreement with the firm. It was a breach of contract, they say, and thus, even though he would have received the money if he had lived, the firm can keep it now.

Continue reading →

Ethics Dunce (Advice Columnist Division): “Dear Prudence”

February 19, 2014 / Jack Marshall / 25 Comments

Hmmm…refreshing! And strangely tangy!

Here is my guess: nearly 100% of all people with two ethics alarms to rub together would be able to answer this question correctly, responsibly, and within about 1o seconds of thought. The question, in essence:

‘I worked as a nanny for a couple I didn’t like, so to make myself feel better, I secretly poisoned them. Now I work elsewhere, and I hear that they are both ill and doctors are stumped. I feel kinda bad about it. What should I do?’

The obvious answer: “For God’s sake, you idiot, tell them what you did, so the doctors can treat them! Why are you wasting time talking to me? They could die, and you would be responsible!”

But this answer isn’t the one given by Emily Yoffe, Slate’s serially incompetent and unethical advice columnist. She responded, in a live online chat that uncovered this vile supplicant, who confessed to routinely dipping her employers’ toothbrushes in the toilet and periodically spiking their bedside water with the same fecal solution, by writing this:

“Part of me would love to tell you to rush to confess. However, I will extend you a courtesy that you didn’t give your “inconsiderate” and “rude” employers. That is, while I think this couple should know the source of their illness, confessing could leave you open to potential prosecution. You may deserve it, but you need to consider the stakes here.”

That part of Emily, apparently, is the sensible, compassionate, ethical part, and it was over-ruled by the unethical, irresponsible, dumb part. The lawyer, if he or she is more ethical than Emily, a good bet, will tell the Potty Poisoner that she should confess immediately in case an E Coli infestation is what is making the couple ill, particularly because they might die, greatly increasing her risk of serious criminal penalties as well as, you know, ending their lives and leaving their children parentless. The lawyer will also explain all the possible scenarios resulting from what Emily seems to dread, honesty and accountability. Even lawyers, who are required to place their clients’ best interests first, are not supposed to advise them to cover up their crimes and allow their victims to perish. Advice columnists are definitely not supposed to do this, and are duty bound to give wise and responsible advice that is in the best interests of all concerned, not just their correspondents, who are likely to be, in general, less than bright, ethically-clueless, and in need of nannies themselves.

“Dear Ethics Alarms: I’m an advice columnist and I told someone who said that she had been poisoning her employers with fecal matter that she didn’t need to ‘fess up, even though they became deathly ill. Now she has written me a follow-up, thanking me for my advice since the couple died, leaving several young children orphaned, and she would have been in big trouble if she had come clean. Now I feel guilty. Should I?”

Yes.

______________________
Pointer: Fark

Source: Slate

The Right’s Unethical, Ignorant, Un-American And Dangerous Attack On Debo Adegbile

February 5, 2014February 5, 2014 / Jack Marshall / 61 Comments

“How can you trust him to head the Civil Rights Division of the Justice Department? He’s a Lawyer!”

I don’t know much about Debo Adegbile, President Obama’s choice to head the Justice Department’s Civil Rights division. I know that he could hardly be more of a disaster than the current Attorney General, Eric Holder, and that the odds are that he would have to be much better. It may be that Adegbile is superbly qualified; it may be that he isn’t qualified at all. But I do know, with 100% certainty, that his representation of a convicted cop killer to seek to overturn his conviction is completely, absolutely irrelevant to his qualifications or character, and that for conservatives, Republicans and GOP Senators in Adegbile’s confirmation hearings to argue otherwise is both irresponsible and contemptible.

I first learned of this controversy from conservative radio host Mark Levin, who can really be an ugly hypocrite at times, and this was one of those times. Levin is a distinguished lawyer and an ethical one*; I refuse to believe that he does not comprehend ABA Model Rule 1.2 (b) or its importance to his profession. It reads:

“A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

This principle is essential to allow, not merely the justice system but the entire rule of laws in a democracy, to function properly, and any lawyer who cynically, unethically, and dishonestly undermines it is playing with fire. “It is a move,” writes Prof. Jonathan Turley, “that strikes at the heart of the notion of the right to counsel and due process”—-but it is much more than that. If every citizen does not have full access to the laws of the land, the ability to use them to his own benefit and protection whatever his purpose, as long as it is legal, then this is not a government by the people and for the people, but rather a government of law-manipulating specialists and experts who bend ordinary citizens to their will through the use of complex, convoluted, jargon-riddled statutes and regulations that their victims can’t possibly understand. Continue reading →

The News Media’s Self-Degradation Continues: The Unethical Sliming of Chris Christie

February 1, 2014 / Jack Marshall / 21 Comments

You have to feel for Christie, who as a Republican moderate can literally find no news media organization that isn’t determined to destroy him, facts or fairness be damned. As a Republican, he is assured of being treated like the Devil incarnate by MSNBC no matter what he does or says. As a proven leader of talent and charisma who poses a threat to the media’s relentless anointment of Hillary Clinton (a WOMAN!!!)—who has displayed neither— as the next President,Christie has a giant target on his back that the mainstream media cannot resist. As non-hateful Republican who is capable of bi-partisan conduct, will shake the President’s hand and has social positions to the left of Pat Robertson and Rick Santorum, Christie is also persona non grata at Fox News.

Thus it was that a completely self-serving, borderline unethical letter seeking financial benefits for his client sent by the lawyer of the former Port Authority official who personally oversaw the lane closings at the George Washington Bridge was turned into a “bombshell” yesterday and this morning, with headlines and breathless talking head claims that are completely, utterly, irresponsible, dishonest, misleading, unfair and wrong. Here’s a sample:

“Christie Linked to Knowledge of Shut Lanes” (NY Times) Untrue. He has not been linked. A lawyer hinted that some evidence suggesting he might be linked exists, or is said to exist, somewhere. That is not being “linked.”

“Chris Christie should resign if bombshell proves true” (Star-Ledger) And if it’s proven that I am a cucumber, I should jump in a salad.

“Chris Christie just got thrown under the bus in that traffic jam scandal that has jeopardized his presidential ambitions.” CBS’s Scott Pelley. By the press, perhaps.

“Explosive new allegations about Chris Christie. Tonight, the man at the center of the bridge shutdown scandal says the governor isn’t telling the whole truth. He says there’s evidence to prove it.” NBC’s Brian Williams. “Lawyer of accused official facing charges says it’s someone else’s fault!” This is headline news?

“This is a hugely significant development in the investigation! It’s a direct challenge to the credibility of Governor Christie.” NBC reporter Michael Isakoff Wrong. It’s significant if it’s true. There is no more reason to believe it is true than to believe it isn’t.

No, Michael, what this is is a journalistic disgrace and an example of intentionally misleading, partisan and biased reporting. The context of the statement being pumped up into a crisis for Governor Christie was omitted in every one of the hysterical “We got him now! media reports until deep into the published or broadcast account, if it was mentioned at all….in other words, well after the point where the average member of the public stops reading or listening. This is unconscionable. It’s disgusting. It is gutter reporting, and rotten journalism. What if each report, as it should have, framed the story this way:

“In today’s new, the lawyer for David Wildstein, the ex-Port Authority official facing indictment in the bridge-closing scandal that has rocked the administration of New Jersey Governor Chris Christie, is using the threat of his client revealing undisclosed evidence indicating knowledge and involvement by the Governor as leverage to have Wildstein’s criminal defense, including the lawyer’s own fee, paid for by the state.”

Because that’s what the story really is.

Take the time to read the entire letter in question, not just the sections I have bolded. Naturally, most of the news reports referenced the letter without actually allowing us to read the letter. The New York Times made it damned difficult to read the letter online, but at least it was there. Here is the whole thing. I’m sorry, but the issue can’t be understood without reading all of it. The letter is from Wildstein’s lawyer, Alen Zegas, to Darrell Butchbinder, who is the General Counsel for the Port Authority: Continue reading →

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