Missouri

In This Law Vs. Ethics Clash, Choosing Law Over Ethics Is The Ethical Course [Link Added]

/ Jack Marshall / 27 Comments

Clear?

Probably not. Let me explain.

On July 5, 2005 in Kirkwood, Missouri, police were executing a search warrant. While they were in his home, twelve-year old Joseph Long suffered a seizure and collapsed. Police, maybe thinking he was faking, maybe worrying about being distracted from their jobs, maybe because they were just cold-hearted bastards, did nothing to help him, and wouldn’t let his mother intervene either. The child died. Two hours later, the same officers responded to the same neighborhood after getting reports of illegal fireworks being set off. Kevin Johnson, the dead child’s older brother, spotted officer William McEntee, one of the police who had been at his home earlier that evening. “You killed my brother,” he said, and fired a gun at the officer multiple times, killing him.

Johnson was tried, sentenced to death, and now, 17 years later, has run out of appeals. He’s going to be executed. His daughter, Korry, just two when he murdered the police officer, is now 19 and wants to be among the limited number of attendees at her father’s death. Missouri has a statute, Revised Code Section 546.740 that determines who is eligible to watch an execution: Continue reading →

Ah-HA! The Zoom Trial Slap-Down I’ve Been Expecting…

/ Jack Marshall / 1 Comment

What took so long?

Add one more bit of disruption to order, law and society inflicted by Wuhan Virus Weenie-ism.

The Missouri Supreme Court, in a January 11 decision, held that defendant Rodney Smith’s Sixth Amendment right to confrontation with witnesses against him was violated by two-way live video testimony about DNA evidence.

Of course it was. I’ve been wondering about this since the beginning of the pandemic lock downs. The witness who testified via video against Smith was a police lab employee. He testified that Smith’s DNA matched what was found on the 16-year-old girl who had accused him of sexual assault. The teenager recanted, making the lab employee’s testimony key to Smith’s conviction for statutory rape. Also key: Smith’s lawyer objected on the record to the Zoom testimony. Other defense attorneys have not been so protective of their clients’ right: I view not objecting as justifying an ineffective assistance of counsel appeal.

The Missouri court distinguished a U.S. Supreme Court case, Maryland v. Craig,that allowed one-way video testimony by child-abuse victims who would be traumatized if they could see the defendant. In Smith’s case, it held, the witness “was neither a victim nor a child,” and the trial court had made no finding that he was unavailable. Moreover, the admission of his testimony was not harmless beyond a reasonable doubt, so the conviction must be reversed.

The guessing is that this issue will ultimately have to be decided by SCOTUS.

Two appellate courts outside of Missouri courts have reached dueling decisions on video testimony The Minnesota Court of Appeals ruled that two-way live video testimony did not violate a defendant’s rights, but you know, Minnesota. The Kentucky Court of Appeals, in contrast, upheld a decision denying a prosecutor’s request to allow a witness to testify remotely because of Wuhan virus phobia. “General concerns about the spread of the virus do not justify abridging a defendant’s right to in-person confrontation,” the court said.

Ethics Dunce: The State Of Missouri

/ Jack Marshall / 15 Comments

black-men-jail

Kevin Strickland was finally set free last week after spending more than 40 years for a triple murder that he did not commit. He had been convicted in 1979 for the April 25, 1978, murders of Sherrie Black, 22, Larry Ingram, 21, and John Walker, 20 without any physical evidence, despite the fact that there was no physical evidence tying him to the crime. His sentence: life in prison without the possibility of parole for 50 years, and two concurrent 10-year-sentences. In releasing him, Judge James Welsh, of Missouri’s Western District Court of Appeals stated that in addition to the lack of physical evidence linking him to the crime scene, another man convicted in the killings had always maintained that Strickland had not been involved.

What wrecked his life was the identification of a single eye witness, Cynthia Douglas, the only survivor of the attack by four armed men in 1978. After being treated for gunshot wounds, Douglas had been able to identify two of the four men responsible for the attack but could not identify the others. Eventually, she picked Strickland, who was “a known associate” of the two men Douglas had identified as shooters, from a line-up, and that was sufficient for a jury to convict him.

Within a year of Strickland’s conviction based on her ID, Douglas began to tell friends that she thought she had made a mistake, but it was not until 2009 that she decided to do anything about it. She finally sent an email to the Midwest Innocence Project, saying in part that she was “seeking info on how to help someone that was wrongfully accused. This incident happened back in 1978, I was the only eyewitness and things were not clear back then, but now I know more and would like to help this person if I can.”

Continue reading →

Sunday Morning Ethics, 9/6/2020: Dog Food, A T-Rex, An Astronaut, The Pope…But No 2020 Campaign Items Whatsoever! Let’s Hear A Little Applause!

/ Jack Marshall / 16 Comments

1 . Boy, the Pope must hate the U.S. media. ‘Did you hear that four people say the President called our soldiers “losers”? It’s true! They really say that!’

Pope Francis called gossiping a “plague worse than COVID” and risks dividing  the Catholic Church. The devil, he says, is the “biggest gossiper.” who is seeking to divide the church with his lies.

Francis was discussing a Gospel passage about the need to correct others privately when they do something wrong. The Catholic hierarchy calls this the “fraternal correction” of priests and bishops to correct them when they err without airing problems in public. You know; like when they sexually abuse children. “Gossip” apparently means “talking about things the Church is trying to cover-up.”

Got it, Your Holiness!

2. Proposition: It’s unethical to buy your dog’s food at the Dollar Store. Sunshine Mills Inc., an Alabama-based pet food company, issued a recall of its dog food this week due to the levels of Aflatoxin, a toxic mold by-product with  the potential of making dogs sick, according to a Food and Drug Administration news release. The products recalled are  FAMILY PET Meaty Cuts, Beef Chicken & Cheese Flavors;  HEARTLAND FARMS Grilled Favorites Beef Chicken & Cheese Flavor; and HAPPY LIFE Butcher’s Choice Dog Food. All are sold exclusively at Dollar General and Family Dollar stores.

I wonder if they sell baby food? Continue reading →

Ethics Dunce: Cody Pfister, The Mad Licker

/ Jack Marshall / 11 Comments

What does one do with someone this stupid?

Cody Pfister, 26, of Warrenton Missouri, was arrested after he filmed himself licking various items at Walmart. Apparently he was under the misapprehension that Walmart is a licker store.

HAR!

But enough levity. In the video he posted to social media, this cretin is seen boasting “Who’s afraid of the coronavirus?” as he sticks his tongue where no tongue should boldly go, especially during a pandemic.

The video, which was apparently made on March 11,  went viral, as they say, circling the globe. The Warrenton police were contacted by residents of the Netherlands, Ireland and the United Kingdom.

“We take these complaints very seriously and would like to thank all of those who reported the video so the issue could be addressed,” the police said in the statement. Continue reading →

Missouri Judges Want Public Defenders To Violate Their Ethics Rules

/ Jack Marshall / 12 Comments

“Hey, Julie! Here’s another drug possession case for you! Looks like a bad stop and frisk…”

The overworked public defender problem is a massive ethics and civil rights problem that few members of the public know about, and fewer care about.

Many cities have underfunded public defender offices, meaning that the mostly young lawyers working there who are charged with protecting the rights of indigent citizens accused of crimes have excessive case loads, often brutally excessive. In some states, judges have ordered the offices to accept no more cases until additional lawyers are hired, because a lawyer’s representation must be competent and diligent, and these ethical requirements become literally impossible to meet when a lawyer has accepted responsibility for too many cases. In situations where public defenders have argued that indigent clients should be able to waive competence and diligence requirements (since the alternative may be no representation at all), the argument has been rejected. Those ethical requirements cannot be waived. They are mandatory.

In his article on the subject, Professor Stephen Hanlon of St. Louis University Law School, a civil rights specialist, writes, Continue reading →

Labor Day Ethics Quiz: The Dr. Seuss Oath

/ Jack Marshall / 37 Comments

Conservative writer Megan Fox was left sputtering with indignation after learning that a Missouri councilwoman, Kelli Dunaway (D…of course), took her oath of  office with her right hand on a Dr. Seuss book. “Just because we’ve done things the way we’ve always done them is no reason to keep doing them that way,” she told ABC News.

Good point! Let’s try taking the oath using a hunk of cheese next time!

The particular children’s classic Dunaway chose for this solemn ritual was “Oh the Places You’ll Go” which, ironically, we recently defended here from the accusation that it was racist.

Fox:

“One can only hope that choosing to make a mockery out of the serious pledge to protect and defend the Constitution will be the catalyst to take her to a new place in the next election–the private sector…Meanwhile, real satirists over at the “Babylon Bee” are suffering trying to come up with something weirder than this to report. No wonder Snopes can’t quit accusing the Bee of trying to sound like real news. The real news is insane.”

Is it?

Your Ethics Alarms Labor Day Ethics Quiz is…

Is it unethical–disrespectful, irresponsible, dishonest— to take an oath of office on a children’s book?

I think I’ll wait for some responses before I give my answer…but I have one.

Saturday Ethics Pick-Me–Up, 6/15/2019: The “Oh, Fine, It’s Afternoon Already And I’m Barely Awake” Edition

/ Jack Marshall / 32 Comments

Bvuh.

Travel hangover today: I’ll do the best I can…

1. Thank you, loyal commenters, for a yeoman job in yesterday’s Open Forum.

2. Confederate Statuary Ethics Train Wreck update. Now the historical airbrushers (all from Progressiveland, just in case you couldn’t guess) are going after Civil War recreations and commemorative events. The head of the Lake County Forest Preserve in Illinois declared that there would be no more annual Civil War Days event after next  month’s edition, if he gets his way. He doesn’t think Confederate flags should ever be displayed, even in battle recreations. Besides, he wants the event to be retooled so that instead of commemorating the single most important period and struggle in U.S. history, it advances an understanding of climate change.

(Who are these people? How did they get this way? What do we do about them so the cultural damage they inflict is contained?)

The home-grown historical censor also said,

“This has nothing we want, nor should celebrate, nor re-enact. When southern states are being made to tear down every statute representing this racist, murdering chapter of our history, I can’t believe here in Lake County our own forest preserve is preserving and celebrating it every year, and with our tax dollars.”

This deliberately brain-dead approach to U.S. history is working (aided greatly by the atrocious neglect of American history in our schools), and by working I mean promoting ignorance so citizens can be more easily misled. The Wall Street Journal reported that visits to Civil War national battlefields are falling off. Over 10 million Americans visited  Gettysburg, Antietam, Shiloh, Chickamauga/Chattanooga, and Vicksburg  in 1970. They only had 3.1 million visitors last year.

That’s about as many tourists as visited the “Cheers” bar in Boston.

3. Oberlin race-baiting update: in case you missed it, the jury in the Gibson’s Bakery case  hit the college with the maximum punitive damages, capped by law at 22 million dollars.  Continue reading →

Morning Ethics Warm-Up, 10/17/18: Travel Hell Edition

/ Jack Marshall / 22 Comments

Good Morning from Virginia Beach, VA…

…where I am giving a legal ethics seminar to a law firm this morning!

1. Count the ethics issues in Travel Hell…This story is true, and I’m not changing any names, because nobody is innocent.

Last night I had to drive to Virginia Beach after another seminar in D.C., and after yet another road trip on family business. It turned out to be a three and a half hour drive in a pouring rain. Arriving at 2:20 am at the Virginia Beach Westin, where I was supposed to have a room, I was immediately informed by the graveyard shift desk clerk that we could not stay there…because the previous occupants of the room reserved for us (my wife and business partner also made the trip) had “left fecal matter” all over the room, creating a HAZMAT situation. Not to worry, though! The beachfront Hilton would put us up, at the Westin’s expense!

Since I wasn’t paying for the room, this was small consolation.

Of course, we had unloaded the car, and the Hilton was 20 minutes away, and the desk clerk had neither an address nor a phone number, which I pointed out to her was essential. (The point of staying at the Westin was that it was convenient to the location of the law firm.) So we loaded up the car and set out to the new destination, arriving just before 3 am. There, the Hilton desk clerk told us that the hotel had just begun an audit, and we could not be put in a room for at least 20 minutes. I was literally afraid to tell my wife this, as she was in the car alternately fuming and wincing in pain because the endless trip had revived her sciatica.

I was not nice to the Hilton desk clerk, who swore that she told the Westin about the problem, and that they should have told us. I said that I didn’t care whose fault it was, they were now responsible for two weary travelers, and that it was her responsibility to fix the problem. She found a very nice man who got a big tip from me for taking charge of our vehicle and taking our stuff up to our room when the “audit” was over.

Once in the room, we discovered that two of the lamps didn’t work, the desk lamp was missing, and the clock was blinking. I told the clerk to send someone up and have the room in the shape I expect hotel rooms to be in before I walk in the door—including having the clock set and functioning.

On the plus side, no fecal matter was in evidence….

2. Why people hate lawyers…Branson Duck Vehicles and Ripley Entertainment are facing multiple lawsuits in the horrific duck boat accident that killed 17 people in Missouri , including nine members of a single family. In court papers filed this week, the companies’ lawyer cited an 1851 maritime law to limit or eliminate liability for the July tragedy.

In a filing in federal court in Missouri, the defendants denied negligence in the sinking of the boat, and argues that if a court does find negligence, they have no liability because, under that law, “the Vessel was a total loss and has no current value. No freight was pending on the Vessel.”

The reaction was predictable. Human beings have no value? This was a Hail Mary defense tactic to be sure, but if that’s the clients’ best option, it is the lawyers’ duty to argue it, IF they first inform their clients that it is a likely public relations disaster that as a cure could be worse than the disease, and seems unlikely to do anything but inflame a jury.

Governor Greitens And The Unethical Release-Dismissal Tactic

/ Jack Marshall / 5 Comments

(The gun being held to the signer’s head is out of the frame…)

The resignation of Missouri Governor Eric Greitens (R), a result that appears to have been over-due, deserved, and necessary, also involved a common form of unethical prosecution. The device is called Release-Dismiss, and it looks, smells and feels unethical. Nevertheless, the Supreme Court and most of the states continue to allow it. They shouldn’t.

Greiten’s resignation came as a result of a plea deal after St. Louis Circuit Attorney Kim Gardner agreed to dismiss charges that Greitens tampered with a computer donor list of a veterans’ charity he founded. The deal also included Grietens’ promise not to sue Gardner or her office.

Greitens’  legal fees were over $2 million, he said,  and he could not afford to go to trial on the charges.  Gardner  said  she was confident she had  the evidence required to convict  Greitens. (That’s what they all say.) But the fact remains that the threat of criminal prosecution was used to pressure Greitens into giving up his civil rights.

In a scholarly paper on this maneuver, one authority writes,

A phenomenon exists in the criminal justice world which allows a prosecutor to strike a bargain with a criminal defendant, permitting them both to cut their losses and walk away from a mutually bad situation. On occasions where arrested individuals may have been wronged by public officials in the course of their arrests, prosecutors may legally agree to dismiss defendants’ criminal charges in exchange for releases by the defendants of any civil claims arising from the arrests. The release-dismissal agreement, and variations upon its theme,’ have been the subject of controversy for several years.

Its supporters rely on the obvious efficiency embodied in the situation. Despite this efficiency, such agreements are dangerous, detrimental to the criminal justice system, and against the better interests of society.

I agree. So does Professor Turley, who wrote, Continue reading →