Ethics Dunce: Santa Clara County Superior Court Judge Aaron Persky

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.

For rape.

I do not find the Judge’s reasoning persuasive. His arguments were.. Continue reading

Comment of the Day: “The Eternal Ethics Conflict: Drawing Lines, Enforcing Them”

speed traps

The post generating texagg04‘s (latest) Comment of the Day dealt with the tricky and common ethics problem of enforcing reasonable rules strictly in the face of situations where compassion and sympathy pull us toward leniency, because the penalty for non-compliance seem out of proportion to the transgression. He correctly identified this as a problem involving the Ethics Incompleteness Theorem (or Principle), which is an ethics analysis concept used frequently here, and one of my favorites. The Theorem, as stated in the Ethics Alarms Concepts and Special Tools, a.k.a. “the Rule Book,” holds that…

The human language is not sufficiently precise to define a rule that will work in every instance. There are always anomalies on the periphery of every normative system, no matter how sound or well articulated. If one responds to an anomaly by trying to amend the rule or system to accommodate it, the integrity of the rule or system is disturbed, and perhaps ruined. Yet if one stubbornly applies the rule or system without amendment to the anomaly anyway, one may reach an absurd conclusion or an unjust result. The Ethics Incompleteness Principle suggests that when a system or rule doesn’t seem to work well when applied to an unexpected or unusual situation, the wise response is to abandon the system or rule—in that one anomalous case only— and use  basic ethics principles and analysis to find the best solution. Then return to the system and rules as they were, without altering them to make the treatment of the anomalous situation “consistent.”

No system or rule is going to work equally well with every possible scenario, which is why committing to a single ethical system is folly, and why it is important to keep basic ethical values in mind in case a pre-determined formula for determining what is right breaks down.

 Tex expands the discussion into such areas as test scores, speed limits, and rule-making itself.  Here is his masterful Comment of the Day on the post, The Eternal Ethics Conflict: Drawing Lines, Enforcing Them:
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Ray Rice’s Indefinite Suspension By The NFL Has Been Overruled On Appeal. GOOD!

You have to be fair to bad guys too, you see.

Ray Rice and sparring partner.

Ray Rice and sparring partner.

If you will recall, the NFL levied a paltry two game suspension on Baltimore Raven’s star last summer, following his guilty plea for knocking his then fiancée, now wife, colder than a mackerel with a punch in her face. Then security camera video of the punch, in a casino elevator, ended up on TMZ in September, and public outrage against the NFL’s casual approach to domestic violence became a public relations crisis for pro football, which has too many already.

In response, Commissioner Roger Goodell ordered a do-over, this time suspending the player indefinitely while Rice’s team, the Ravens, fired him. The NFL’s risible claim was that while Rice had admitted that he hit the love of his life so hard that he rendered her unconscious, they never suspected that he really, really hit her until they saw the video.

As I wrote at the time:

Sports stars who engage in criminal behavior should be penalized heavily by their teams and leagues, to leave no question about their special status as paid heroes and pop culture role models and their obligations to honor that status. Rice’s conduct was especially significant, given the prevalence of domestic abuse in this country. The NFL, however, had its shot, made its statement, disgraced itself and let him get off easy. Rice hasn’t done anything since then worthy of punishment. The league and Rice’s team should have to live with their initial decisions, no matter how much criticism they received for them. The overly lenient punishment should stand as symbolizing how outrageously tolerant society, and especially male dominated cultures like pro football, are of this deadly conduct. Treating the video as if it constituted new evidence of something worse is unfair and ridiculous: yes, you morons, this is what domestic abuse looks like!

Rice [I originally said “Peterson” here, getting my violent NFL players mixed up] appealed through the player’s union, and yesterday a judge agreed with him, the union, and me, writing:

“In this arbitration, the NFL argues that Commissioner Goodell was misled when he disciplined Rice the first time. Because, after careful consideration of all of the evidence, I am not persuaded that Rice lied to, or misled, the NFL at his June interview, I find that the indefinite suspension was an abuse of discretion and must be vacated…I find that the NFLPA carried its burden of showing that Rice did not mislead the Commissioner at the June 16th meeting, and therefore, that the imposition of a second suspension based on the same incident and the same known facts about the incident, was arbitrary…The Commissioner needed to be fair and consistent in his imposition of discipline….Moreover, any failure on the part of the League to understand the level of violence was not due to Rice’s description of the event but to the inadequacy of words to convey the seriousness of domestic violence. That the League did not realize the severity of the conduct without a visual record also speaks to their admitted failure in the past to sanction this type of conduct more severely.”

Yup. That just about covers it.

I think it’s overwhelmingly likely that the NFL’s lawyers advised the league that this would be the end result if they tried to punish Rice for the same act twice. The NFL decided that it was worth it to abuse its power and look like it was trying to end Rice’s career so after a successful appeal, it could say, “Well, we tried to do the right thing, and that mean old judge wouldn’t let us! Don’t blame us.”

Anyone who falls for that act is a fool. The real lesson of this ugly sequence is that the NFL’s culture doesn’t recognize right and wrong, or care about either. It’s only concern is TV ratings,  marketing and profits.

 

Today’s Ethics Understatement: “This Story Does Not Encourage Trust In The Legal Profession”

photoshoppinglawyer_screenshot

Svitlana and her fake friends

The ABA Journal informs me this morning that a California bar court judge has recommended a six-month suspension for attorney Svitlana Sangary. Oh, she has some client ethics complaints against her, but that was the least of her problems.

On her firm website, she had posted photographs showing Sangary with politicians and celebrities, including President Obama, Bill Clinton, Hillary Clinton, George Clooney, Donald Trump, Arnold Schwarzenegger, Morgan Freeman and Paris Hilton. An expert testified that most or all of the images were photoshopped, making them visual lies. A lawyer is not allowed to lie on her website, or anywhere else when it may mislead clients and the public.

Paris Hilton? Continue reading

The Ray Rice Ethics Train Wreck Welcomes Rihanna…But It Had A Seat Already Reserved, And Another Rationalizing Victim

Ray Rice's punches are love taps compared to the ones Chris Brown throws at HIS girlfriends...

Ray Rice’s punches are love taps compared to the ones Chris Brown throws at HIS girlfriends…

CBS Sports pulled pop superstar Rihanna’s intro to Thursday night’s NFL game between the Ravens and the Steelers following the public release of a video showing Ravens running back Ray Rice beating his wife, then-fiancée, in a casino elevator.CBS said it did this to “maintain a proper tone,” which was a euphemism for “What we don’t need is to begin a nationally televised NFL game featuring the team that just dumped its star running back because this video shows how incredibly blase the league and the team had been about the fact that he cold-cocked a women with a performance by a pop singer who epitomized the enabling domestic violence victim until Janay Rice arrived on the scene.”

In case you have forgotten, in 2009, singer and recording star Chris Brown was charged for a violent attack  on Rihanna, during which, the police report says, he bit her, slammed her head into a car radio, and punched her in the face multiple times. Rihanna then re-united with Brown, announced that she was planning on recording a duet with him. She also refused to agree to a restraining order requiring Brown to keep away. Both performers had received two nominations for Nickelodeon’s Kids’ Choice Awards before the incident, and they both planned on attending, giving young girls a wonderful lesson about how they should stand by their man even after he breaks your face. (Brown was finally persuaded to withdraw.) The two actually did reunite at least once, in 2013, while Brown was still serving his probation for the first incident. Continue reading

Knock-Out Punches, Murder and Political Correctness Bullying: Let’s Play “SPOT THAT DECEIT!”

Game show set

I am fascinated by deceit, and not just because I live near Washington, D.C., where it is the official tongue. It is fascinating because deceit is often the most effective kind of lie, tricking a listener or a reader  using their own assumptions, desires, misplaced trust or inattentiveness against them by stating a literal truth to imply an actual falsehood. Most of all, deceit is fascinating because so many people, including those who employ it habitually, think that it isn’t a lie at all.

This morning I found three wonderful examples of deceit, brought to our attention by three distinguished bloggers, so let’s play the challenging, exciting and never-ending game that’s sweeping the nation…

Spot That DECEIT!

Let’s warm up with something easy…

1. The NFL Deceit

Law prof-blogger Ann Althouse found it difficult to believe that the NFL hadn’t seen the videotape showing Baltimore Ravens stat Ray Rice knocking out his fiancee with a well-aimed punch before it gave him his first, absurdly light punishment, though the official spokesperson yesterday said…

“We requested from law enforcement any and all information about the incident, including the video from inside the elevator.That video was not made available to us and no one in our office has seen it until today.”

OK, audience…

Spot That DECEIT!

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The NFL’s Latest Ray Rice Hypocrisy: “You Mean He Actually HIT Her When He Knocked Her Out?”

"At least Rice didn't kill anyb...wait, we kept that player who killed somebody, didn't we? Now what?"

“At least Rice didn’t kill anyb…wait, we kept that player who killed somebody, didn’t we? Now what?”

This is hilarious, tragic, idiotic or infuriating, I haven’t decided yet.

The NFL and the Baltimore Ravens, having made it absolutely clear that they really weren’t all that upset with the fact that star  Ravens running back Ray Rice cold-cocked his soon-to-be-wife in a hotel elevator (and since she dropped charges against him and married her assailant, she wasn’t all that upset about it either) because he received only a two game suspension from the league and no added penalties from his team, suddenly got really determined to make a statement against domestic abuse once the security camera video of the incident became public today.

Now that it has—they always knew the video existed—-the NFL has re-punished Rice, and the Ravens have released him.

Translation of the message this sends: Continue reading

Look! There Is Hope! Sometimes The System Actually Works!

hallelujah

The 8th Circuit Court of Appeals rejected the absurdly lenient prison sentence given to an Iowa police officer who brutally beat a man without cause, then filed a false police report accusing his victim of attacking him. Mersed Dautovic had been sentenced to just 20 months for the attack after a four-day trial in which a Des Moines jury found him guilty of using excessive force and obstructing justice.

Though the sentencing guidelines called for a range of 135 to 168 months, the trial judge sentenced sentenced Dautovic to only 20 months in prison.
A three-judge panel on the 8th Circuit found this to be a “substantively unreasonable” punishment for Dautovic’s “egregious” conduct, which included savagely beating an innocent man, causing his victim serious and permanent bodily injury, then writing a false police report that caused the beaten man and his girl friend to have criminal charges filed against them,  and offering perjured testimony against them at their trial.

“When the totality of the circumstances is considered, a variance from the guidelines range of 135 to 168 months’ imprisonment to a 20-month sentence is unreasonably lenient,” Judge Roger Wollman wrote for the court in his 14-page opinion.

Ya think?

Well what do you know…justice was done within the system!

In a case involving police misconduct!

When the cop was white,

And his victims were black!

And there were no demonstrations, riots, or looting involved!I guess that’s why you didn’t see this in the news.

_______________________________

Source: Courthouse News Service.

Musings On The Clarence Thomas Affair and Insideous, Unavoidable, Rationalization Eleven

If you are good enough and valuable enough, do you deserve one of these?

If you are good enough and valuable enough, do you deserve one of these?

A recent—and off-topic—comment caused me to begin thinking about “The King’s Pass,” #11 on the Ethics Alarms Rationalization hit parade,and perhaps the most perplexing of them all. The commenter referenced the 2010 discovery that Supreme Court Justice Clarence Thomas had inexplicably neglected to mention his activist wife’s annual income on his annual financial disclosure filings, meaning that he had filed a false affidavit and violated the law. Thomas claimed that he had made a careless mistake—for five years—and the matter was allowed to drop except for the angry agitating of the Anti-Clarence Thomas Furies, who are constantly searching for any way to get a conservative black justice off the Supreme Court short of assassination.

The episode had left a bad taste in my mouth, and I was happy to be reminded of it, bad mouth tastes being essential to triggering ethics alarms. I went back to read my post on the matter, and sure enough, I had followed the principle of rejecting The King’s Pass, and asserted that Thomas should be punished appropriately and formally…but that really ducked the question. Lawyers have lost their licenses to practice for single episodes of swearing to false information when it was far more obvious that a mistake had been made than in Thomas’s case, as when a hapless Maryland lawyer carelessly signed a legal document that had misrecorded  his address. The logic of this no-tolerance ruling was that a lawyer, above all people, should never swear to a falsehood, and that doing so, even once, was a serious breach of duty calling into question his fitness to practice law. I think the penalty for this particular act was excessive—it is cited locally as a cautionary tale—but I agree with its underlying principle, which should apply with even more vigor when the lawyer in question is a judge, and not merely a judge, but a Supreme Court Justice.
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Judges Who Appear To Have Difficulty Grasping The Seriousness Of Rape, And The Results Of Misallocating Values

Ok, I grant you, he drugged his wife to rape her for three years. But she was snippy when she was conscious...have some compassion!

OK, I grant you, he drugged his wife to rape her for three years. But she was snippy when she was conscious…have some compassion!

In Indiana, Superior Court Judge Kurt Eisgruber decided that jail time was too harsh for David Wise, who was convicted of  drugging his wife, raping her in her sleep, and videotaping the rapes…for three years.  He sentenced Wise to eight years of home confinement, with the remaining 12 years of his 20-year sentence suspended. Prosecutors had asked for a forty year sentence.

For some reason, Wise’s victim and former wife Mandy Boardman still holds a grudge. She recounted to the press how she would wake up puzzled, with a half-dissolved pill in her mouth. Finally, all became clear when she found videos of sexual encounters on Wise’s cell phone, and her husband confessed to her that his non-consensual sex with his drugged wife had been going on for more than three years. In trial, he explained that she was a little snippy sometimes, so drugging her and having her unconscious during sex made it a lot more pleasant for him.

Judge Eisgruber has declined to explain why this horrendous crime doesn’t warrant imprisonment, though he is running for re-election unopposed this fall, making a write-in campaign for, well, just about anybody or anything essential, I would think. He did express concern with the victim’s conduct, however, imploring her to forgive her ex-husband for his astounding breach of  trust, respect, fairness, dignity, and honesty, not to mention the law, telling Boardman during the sentencing  hearing, “I hope that you can forgive him one day, because he’s obviously struggled with this and struggled to this day, and I hope that she could forgive him.” The judge added, helpfully,

“Ultimately, I think that helps a lot of people heal — it helps them to reach that point. Some can, some cannot. I’m not in her shoes, I’m not able to say one way or another … It’s not something that’s limited to her or this case. But when people are really struggling, I just offer that out. … I just hope that they find peace.”

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