Missouri Judges Want Public Defenders To Violate Their Ethics Rules

“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

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

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

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

(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

Dinnertime Ethics Leftovers, 5/30/18: Whatthehellism, Greiten’s Resignation Gets Spun, And The Cubs Manager Demonstrates Rationalization #30 For The Class

(This post was all set to go up before noon. I just had the last item to finish..and then all hell broke loose here. I’m sorry. Now the meal is cold…)

1. Not whataboutism, but rather whatthehellism…It’s a trap, of course. A blatant racist tweet like Roseanne’s yesterday would get CEO fired, a Cabinet member fired, and I suspect, a tenured professor fired, though equally racist tweets have been survived by profs as long as they denigrated whites. Still, the media’s double standard is palpable, as well as undeniable. Thus I was amused when a sudden surge in visits to a post from last September led me to rediscover this, authored then by Keith Olbermann:

and these…

Can we assume, therefore, since it was recently announced that ESPN, like ABC owned by Disney, is bringing back Olbermann for a prominent role in its sports broadcasting, that the company does want to be associated with his kind of vulgarity, incivility and hate? Continue reading

Morning Ethics Warm-Up, 5/15/2018: Alito Gets One Right, Ellison Deceived, And An Ancient, Unethical Tactic Works Once Again…

To a glorious morning, Ethics-Lovers!

1. Bad Alito, Good Alito.  As I briefly noted yesterday (and hopefully will do in detail today), Justice Alito authored an unethical and embarrassing dissent defending a lawyer who deliberately betrayed his client by telling the jury that he had killed someone his client denied killing. Bad Alito. However, the arch-conservative jurist also authored the majority opinion in Murphy v. National Collegiate Athletic Association, in which the SCOTUS majority struck down a virtuous but unconstitutional law, and did so clearly and well.

These are, I think, my favorite Supreme Court opinions, where the Court ignores the motives and objectives of a law and simply rules whether the legislature is allowed to behave like that. I don’t know, but I would guess that most of the majority feel the way I do about organized sports gambling: nothing good can come of it, and a lot of harm is inevitable. One they get the green light, I’m sure that as many states will take over sports gambling for its easy revenue as now prey on its poor, desperate and stupid with their state lottery scams. Everyone involved–sports, fans, athletes, states, the public’s ethical compass—is going to be corrupted by letting the sports betting genie out of its bottle: just watch.

Nevertheless, the Professional and Amateur Sports Protection Act, a 1992  law known as PASPA, should have been struck down decades ago; I’d love to know why it took so long. No, it did NOT ban sports betting, though this is what far too many news reports tell you. Congress can ban sports betting directly if it chooses to, as it is interstate commerce. This isn’t in dispute. What it did in 1992, however, was to order states not to pass laws states have a constitutional right to pass. The distinction matters. From SCOTUS Blog, which is usually the best source for analysis of these things:

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…

…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

…The court also rejected the argument, made by the leagues and the federal government, that the PASPA provision barring states from authorizing sports betting does not “commandeer” the states, but instead merely supersedes any state laws that conflict with the provision – a legal doctrine known as pre-emption. Pre-emption, the majority explained, “is based on a federal law that regulates the conduct of private actors,” but here “there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” which “is exactly what the anticommandeering rule does not allow.”

Got it.

Good decision. Continue reading