The Fifth Annual Ethics Alarms Awards: The Worst of Ethics 2013 (Part One)

This is the first installment of the Worst.  It says something, and not something happy, that this segment of the year-end awards are more than twice as voluminous, and far more competitive, than the “Best” of 2013 ethics. Well, nobody said it would be easy….

Ethics Train Wreck of the Year

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Obamacare, a.k.a Affordable Care Act. This is quite an achievement, as there were at least two other three Ethics Train Wrecks rolling along in 2013 that would have been easy victors in a less horrible year. One of them, The Trayvon Martin- George Zimmerman Ethics Train Wreck, was last year’s winner, and still wreaked ethics carnage across the culture, thanks to Zimmerman’s trial (which never should hev been brought), the biased media coverage, the incompetent prosecution, the inept judge, and then afterward, the ignorant and/or racially motivated attacks on the jury for doing its job well and fairly against overwhelming odds. Yet as bad as this hangover from 2012 was, the Sandy Hook Ethics Train Wreck was arguably even worse. The news media decided to go Soviet and abandon all pretense of objectivity, essentially becoming an Obama Administration propaganda tool for gun control. Elected officials lied their heads off; so did the aroused NRA. Gun owners talked and behaved like they were about to be Gulaged. Legislators shamelessly used the grief of victims to stampede public opinion; children became props; fake statistics were everywhere; brain-damaged Gabby Gifford was programmed to read child-like messages as if they were the conclusions of research papers. The President’s total lack of political leadership skill again came front and center, then, when he had failed to do what he promised to do, the opposition was vilified by celebrities like Jim Carrey, who called them murderers and worse.

But the Affordable Care Act lapped both of these. It revealed itself to be a five-year long train wreck that just took a break after an earlier stretch where the bill was passed without due diligence by its supporters and using a cynical by-passing of due process. A Presidential lie intentionally devised to deceive the public was repeated for the five-year span, and then exposed when the law began to take affect….but not before the law inspired Republicans to force a reckless and irresponsible shut-down, a mini-train wreck within the train wreck.  The website debacle was initially spun by the news media (not working worth a damn isn’t a “glich”), then the evidence of near criminal ineptitude became impossible not to report. The indisputable evidence that the President of the United States had sold a program under false pretenses came to light, prompting dozens of politicians, bloggers, pundits and reporters to destroy their credibility forever (I hope) by desperately trying to either rationalize the lie ( “the ends justify the means”), call it something other than what it was (The New York Times’ disgraceful “incorrect promise” was one low point), or simply deny that it was a lie at all (Democratic Chair Debby Wasserman Schultz, setting a new low for personal dishonesty, itself an achievement in her case). Then, when the public pressure and political fall-out became unbearable. the President just began amending the provisions of his own law on the fly, except that it was the nation’s law, and it’s unconstitutional to do that—this, after the mantra from Democrats and the news media during the shut-down debate was that the ACA was “settled law.”  HHS Secretary Sibelius misled Congress, the White House denied that her stated goals were goals once it was obvious they wouldn’t be met; and nobody was held responsible for yet another Obama Administration debacle. And there’s a lot more, with the train wreck still moving at top speed.

Fraud of the Year

Iowa State University biomedical sciences assistant professor Dong-Pyou Han, who resigned after admitting he tainted blood samples to get desired outcomes in research animals, allowing him to claim a break-through in the effort to develop an AIDS vaccine. The National Institutes of Health had awarded Han’s research team $19 million in multi-year grants.

Incompetent Elected Officials of the Year

  • Elected Body (National): House Republicans, who staged a wholly useless, expensive and damaging government shut-down on “principle,” without ever articulating what that principle was sufficiently for anyone responsible to agree with them. Runner-Up: The California House Legislature, which passed a law allowing illegal aliens to practice law.
  • National Elected Official:  President Obama.  From being incapable of working with Congress, to refusing to fire incompetents, to not knowing what was going on in his own administration, to drawing red lines he wasn’t willing to defend (and then advocating killing people just to show he was willing to defend them), to undermining the trust and faith in both his office and himself by uttering unequivocal lies, President Obama had one of the worst years of self-inflicted miscalculations, errors, failures and reversals of any U.S. President in history. I’m sorry to have to say it, but it’s true.
  • Local Elected Official: Storey County (Nevada) Assemblyman Jim Wheeler (R). Wheeler told a group that if his constituents demanded it, he would vote (with a heavy heart)  to reinstate slavery, as he felt doing so would be his duty as a representative. Runner-up: Maryland House of Delegates Member Don Dwyer (R), who after a drunk driving and drunk boat piloting episode, the latter injuring several people, blamed his conduct in part of feeling betrayed over his colleagues approval of gay marriage in Maryland.

Sexual Harasser Of The Year Continue reading

Dear Legal Profession: How Can We Respect And Trust You When You Police Yourself Like THIS?

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I’ve been defending my profession a lot here lately, but I also recognize that there is a very good reason why such incidents as the surprisingly generous sentence in the “Affluenza” case and the drug court judge who suffered an alcoholic relapse on the bench are wrongly interpreted as proof of inequities and double standards in the legal system. The reason is that those who oversee the system do inexplicable things that appear to the outside world as not only a lack of integrity but also the apparent inability to realize how such conduct undermines the public trust.

Both of these recent news stories are cases in point:

I. The Imaginary Government Lawyer

In 2012, the Nebraska state supreme court disbarred lawyer David Walocha for not paying his bar dues and proceeding to practice law for 13 years with a suspended license. At the end of 2013, the District of Columbia Bar had to decide what to do with former Justice Department attorney Laura Heiser, who practiced 21 years with a suspended license in the District. What was her punishment? She received an informal admonition, which is the least severe form of disciplinary action.  Continue reading

Comment of the Day: “Ethics Observations On The “Affluenza” Sentence”

 

I don't think this is the same "Theodoric of York" who authored this excellent "Comment of the Day"...at least I hope it isn't.

I don’t think this is the same “Theodoric of York” who authored this excellent “Comment of the Day”…at least I hope it isn’t.

The heat/ light ratio in the comments to the post about the controversial sentencing of a 16-year-old scofflaw in Texas has been depressing, but among the rational, measured, well-considered and thought-provoking responses by those who actually read the post, this one, by new commenter Theodoric of York,  is a winner. His politeness is especially appreciated among all the posts calling me names that would shock my mother. I hope he comes again, and often.

I’ll have some further comments after he’s had his say. Meanwhile, here is Theodoric of York’s Comment or the Day on the post Ethics Observations on the “Affluenza” Sentence.

Disclaimer the first: I’m not an attorney, nor do I play one on TV. Disclaimer the second: I have no knowledge of Texas law regarding juvenile justice, nor do I have any knowledge of Texas state law regarding negligent vehicular homicide, nor do I have any real knowledge of that state’s laws regarding DUI, homicide, manslaughter or murder. And yes, I know the difference between murder and negligent vehicular homicide, and I am also aware that young Mr. Couch is a minor. Disclaimer the third: I have not read Judge Boyd’s actual ruling, nor have I seen actual video of her sentencing. If someone could provide a link to that (if a link exists), it would be appreciated. That being said: Continue reading

“Affluenza”: The Podcast

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Arthur King of WGAN newsradio engaged me in a segment of his show “Inside Maine” this afternoon.

You can, if you are so inclined, hear it here.

Much thanks to Arthur for the chance to chat with him about these issues.

Ethics Observations On The “Affluenza” Sentence (And None Of Them Involve Criticizing The Judge)

Judge Boyd, being judged. (The earlier photo posted was NOT Judge Boyd. I apologize to the judge, readers, and whoever's photo that was.)

Judge Boyd, being judged. (The earlier photo posted was NOT Judge Boyd. I apologize to the judge, readers, and whoever’s photo that was, for the error)

The newsmedia and blogosphere are going bonkers over the sentence given to Ethan Couch, the 16-year-old Texan who pleaded guilty last week to four counts of intoxication manslaughter and two counts of intoxication assault causing serious bodily injury. He had a blood-alcohol level three times the legal limit (Couch had stolen beer from a Walmart), plus traces of Valium in his system, when he lost control of  the Ford F-350 pick-up he was driving (over the speed limit) and slammed into four people trying to fix a disabled car on the shoulder. They were killed; two of his seven passengers were critically injured. Prosecutors proposed 20 years in jail as the proper punishment for Couch, but his attorneys tried a novel defense: they had experts testify that their client suffered from “affluenza,” a malady caused by his rich, amoral, neglectful parents, who taught him (the theory goes) that there are no consequences for anything, if one has enough money.

Rejecting the prosecution’s argument, State District Judge Jean Boyd, presiding over the Fort Worth Juvenile Court, shocked everyone by sentencing Couch to only 10 years of probation—no prison time at all. The gist of the media outrage: once again, the life philosophy of Couch’s sociopathic parents is validated. The rich get away with everything: a poor, minority defendant who engaged in the same conduct would have been imprisoned. This is the injustice of the criminal law system in America.

Maybe. But let’s not get ahead of ourselves.

I think the judge, despite what we are hearing from the media, may have done her job well.

Continue reading

The Outrageous, Offensive, Ethical Murder Defense

"OK, granted, my client killed her. That's wrong. But shouldn't he get some credit for the fact that her loss is a net gain for society?"

“OK, granted, my client killed her. That’s wrong. But shouldn’t he get some credit for the fact that her loss is a net gain for society?”

The evidence at trial showed that Rasheen Everett arrived at Amanda Gonzalez-Andujar ‘s Queens ( New York) apartment on March 27, 2010, and almost 24 hours  later, left carrying two bags filled with the prostitute’s belongings including her camera, laptop and cell phone.. Her lifeless body was later discovered, covered in bleach. The judge pronounced the defendant, who showed no remorse during the proceedings, “a coldhearted and violent menace to society.”  Everett apparently killed Amanda after discovering that she was transgendered. She had solicited him over tbe internet.

Desperately arguing to keep Everett’s post-conviction sentence as light as possible (it turned out to be 29 years in prison), Queens defense attorney John Scarpa made about as repugnant an agrument to Queens Supreme Court Justice Richard Buchter as the imagination could devise. “A sentence of 25 years to life is an incredibly long period of time, judge,” Scarpa protested. “Shouldn’t that be reserved for people who are guilty of killing certain classes of individuals? Who is the victim in this case?” he asked. “Amanda was engaged in a life of prostitution, life of drug use, HIV exposure. She was having sex with other individuals knowing she had the chance of spreading diseases….Is the victim a person in the higher end of the community?” he asked.

This theory would have ensured Jack the Ripper, had he ever been caught, a work release program, perhaps in a butcher shop. Continue reading

Cuomo Interviewing Cuomo? Of Course It’s A Conflict!

The interesting question isn’t whether CNN’s Chris Cuomo blithely interviewing the Governor of New York Andrew Cuomo—who happens to be his brother–is a conflict of interest and an example of unethical journalism. Of course it is. The interesting question is what it tells us about the state of U.S. journalism that such an interview could even occur.

Here are two prominent provisions of the Society of Professional Journalists Code of Ethics, requiring that ethical journalists…

  • “Avoid conflicts of interest, real or perceived.”
  • “Remain free of associations and activities that may compromise integrity or damage credibility.”

Is there any question that a CNN anchor man interviewing his brother regarding anything whatsoever violates both of these? Real or perceived? Compromise integrity or damage credibility? Seriously?

Cuomo the Anchorman was interviewing Cuomo the Governor regarding the recent train accident. Conflict? Sure: the journalist is supposed to have only one duty, and that is to his audience. But Cuomo the Anchorman obviously has another, potentially confounding duty of loyalty to his interview subject, and this he must not have. It calls into question his willingness to probe and, if the facts warrant it, to ask uncomfortable questions of his subject. If Chris Cuomo’s duty to his audience unexpectedly requires him to breach his loyalty to his own brother, which will he choose? We don’t know. Perhaps Cuomo himself doesn’t know. He was obligated not to place himself in a situation where the question even needed to be asked.

The various defenses being offered are, I have to say, misguided and disturbing. The usually sensible Joe Concha of Mediaite writes that the controversy is “much ado about nothing.” His reasons are … Continue reading

Wait…The Judge And The Defense Attorney Were Having An Affair, And The Defendants Were Convicted Anyway? So What’s The Problem?

"Yes, counsel, I am throwing the book at your clients because I love you."*

“Yes, counsel, I am throwing the book at your clients because I love you.”*

The Georgia Court of Appeals has ordered new trials for five men convicted of serious crimes in Fayette County because their trial judge was having an undisclosed affair with defendants’ public defender.

Doesn’t  that seem strange to you? After all, the clients of the judge’s secret love were convicted and sentenced. Why should they get the benefit of  new trials when the judge’s evident conflict and judicial misconduct didn’t benefit them or harm them in any way (unless a judge making sure his lover’s clients get prison time is a quirky way to say “I love you” in the Peach Tree State). This isn’t like the horrendous Charles Dean Hood case in Texas, where a man was sentenced to death after a trial in which the state prosecutor was sleeping with the judge.

The Georgia judge-lawyer affair (and I thought Steven Bochco was making it all up!) came to light in 2010. Paschal English, who subsequently resigned as chief Superior Court judge, had been involved in a romantic relationship with assistant public defender Kimberly Cornwell, who has also moved on to new pursuits, ideally those that don’t require trust or ethics. A three judge panel recently agreed that this relationship, undisclosed and a clear cut ethical violation for both judge and attorney, required that there be new trials for Christopher Wakefield and Travion Willis on charges of armed robbery, kidnapping, aggravated assault and other crimes; William Nutt for aggravated child molestation and aggravated sexual battery; Rashad Arnold for burglary; and Calvin Boynton for armed robbery, aggravated assault, possession of a sawed-off shotgun and drug possession.

Hmmmm… Continue reading

“How Dare Universities Charge Such High Tuition?” KABOOM!* #1: Georgetown University Law Center

headexplode

Kaboom.

James Feinerman, the James M. Morita Professor of Asian Legal Studies at Georgetown University Law Center, who also serves as its associate dean for transnational programs, was hired by the U.S. government as an expert witness  to bolster the prosecution in a spying case, and apparently plagiarized a substantial potion of the report submitted to the court from <sigh–there goes that value of THAT degree> Wikipedia.The defense picked up on the uncited cribbing and the federal court is now examining whether the sources used by Wikipedia are reliable enough for his report to be accorded any validity. The Government, meanwhile, represented by assistant U.S. attorneys Peter Axelrod and John Hemann, is stuck with making desperate “ahumunahumuna” sounds like Ralph Kramden used to do on “The Honeymooners” when he was caught looking stupid and spouting lame arguments in court filings about how Feinerman “utilized language from Wikipedia as a concise English-language summary of his opinions on certain topics.”

Riiiight. Continue reading

My JFK Ethics Tale

 Shredded Files

As regular readers here  know, I am not an admirer of the character of John Fitzgerald Kennedy, though he had some notable leadership skills that I respect. His reputation as a great man and President is vastly inflated and, in a strange way, I may share some of the responsibility for that.

Several years ago, I had just completed an ethics seminar for the DC Bar. One of the issues I discussed was the lawyer’s ethical duty to protect  attorney-client confidences in perpetuity, even after the death of the client. An elderly gentleman approached me, and said he had an important question to ask. He was retired, he said, and teased that I would want to hear his story. I don’t generally give out ethics advice on the fly like this, but I was intrigued.

“My late law partner, long before he began working with me, was Joseph P. Kennedy’s “‘fixer,'” he began, hooking me immediately. “Whenever Jack, Bobby or Teddy got in trouble, legal or otherwise, Joe would pay my partner to ‘take care of it,’ whatever that might entail. Well, my partner died last week, and when I saw him for the last time, he gave me the number of a storage facility, the contract, and the combination to the lock. He said that I should take possession of what was in there, and that I would know what to do. Continue reading