Saturday Ethics Run-Down, 7/20/2019: Perry Mason, Kamala Harris, And Home Runs-On-Demand

I’m calling it a run-down because I’m run down….

1. More “phantom document” ethics. Last moth I wrote about the ethically dubious “phantom document” tactic, in which a lawyer alludes to a document he or she either does not have, or suggests a document has content it does not in order to trick a witness into recanting testimony.

I just saw the Eighties made-for-TV movie “Perry Mason Returns” that rebooted the classic series (and not so well) for an aging Raymond Burr. The great defense lawyer comes out of retirement to defend old legal assistant Della Street (Barbara Hale), who has been accused of murder. In the trial’s climax, Perry’s investigator Paul Drake, Jr. (played by Hale’s real-life son, actor William Katt of “The Greatest American Hero” fame) bursts into the courtroom and hands Perry a document, which he then holds as he asks the witness (Richard Anderson, playing a different role than he played in the original series) he was in the midst of cross-examining, “Would you like to reconsider your testimony? Would you like me to read a sworn statement from Bobby Lynch, in which he says you hired him to kill Arthur Gordon?”

The witness confesses that he planned the murder that Della was being tried for, and framed her. Della goes free! Perry then tells Della that there was no sworn statement. “I didn’t say I had a sworn statement,” he chuckles, “I just asked if he wanted me to read one.” Continue reading

Morning Ethics Warm-Up, 7/11/2019: Smears, Excuses And Betrayals

Ethics Alarms wishes you the best this morning…

1. How low can they go? NBC News published a 1768-word article this week examining Senate Majority Leader Mitch McConnell’s slave-holding  ancestors.

The 1850 and 1860 censuses reveal that between them, two of the Kentucky Senators’ great-great-grandfathers, James McConnell and Richard Daley, owned at least 14 slaves in Alabama.The article’s apparent objective is to suggest that  Sen. McConnell’s ancestors may have influenced his policy positions, implying that he is racist by blood.

Nah, there’s no mainstream news media bias!

Asked about his ancestors in a press conference, McConnell pointed out that Barack Obama also has slave-holding  relatives in his family tree. Mitch was nicer than I would have been. I yield to no one in my dislike for the Senate Leader, but this is a self-evident smear ny NBC, a blatant “guilt by association” ploy with the damning associations being with people McConnell never knew.

Have you no sense of decency, NBC, at long last? Have you left no sense of decency?

In full disclosure, my father’s mother’s family, also from Kentucky, owned slaves. One of them, a housekeeper, continued to be employed by the family, and my grandmother cared for her in the woman’s old age, as a permanent guest and companion until she died.

Amazingly, this did not make me a fan of Mitch McConnell.

2. I’m STUNNED! Well, no, actually I knew this more than 30 years ago, when I oversaw a non-partisan study on the issue. From NPR:

Raising the federal minimum wage to $15 an hour by 2025 would increase the pay of at least 17 million people, but also put 1.3 million Americans out of work, according to a study by the Congressional Budget Office released on Monday.

The increased federal minimum could also raise the wages of another 10 million workers and lift 1.3 million Americans out of poverty, according to the nonpartisan CBO. The current federal minimum wage is $7.25 and last increased a decade ago.

The budget watchdog’s report comes ahead of next week’s vote in the House of Representatives on a bill to gradually raise the federal minimum to $15 an hour by 2024.

The minimum wage is an example of the Left’s “Don’t confuse us with facts, our minds are made up!” orientation when it comes to thoroughly debunked socialist cant. It’s pretty simple: when the compensation required for  certain jobs outweigh the value of those jobs, the jobs disappear. Rep. Bobby Scott (D-Va.), the author of  the Raise the Wage Act, argued that the benefits in CBO’s forecast far outweighed the costs. Tell that to the restaurant owners who will have to close up shop, and the 1.3 million who lose their jobs, Bobby. All for the greater good!

Politicians like Bernie Sanders and Elizabeth Warren who push a massive minimum wage increase are counting on the public’s ignorance, as in other issues. Continue reading

Comment Of The Day: “Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie” (#2)

This is the second Comment of the Day on this post, also item #2, regarding the Michael Cohen machinations. The news media is doing a negligent job examining exactly what’s going on so that the average voter with an IQ in three figures has a fighting chance of understanding it. Greg’s comment,  like Michael Ejercito’s before him, helps explicate what the politicized and biased profession that we foolishly trust to inform us does not.

Here is Greg’s Comment of the Day on the post, Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie:

I read the plea agreement and was mystified. It has been known for months that the National Enquirer paid Woman #1 (I forget her real name) for the exclusive rights to her story and that Cohen paid Woman #2 (Stormy Daniels) for a non-disclosure agreement. Democrats have been claiming that these hush money payoffs were illegal campaign contributions, but that theory is tenuous.

The mystifying news in the plea agreement was that before the election, Cohen bought the rights to the non-disclosure portion – not the story rights, which the Enquirer kept – of the Enquirer’s agreement by paying the Enquirer’s back their entire cost for the full agreement. Then after the election, Cohen sold the Enquirer the rights to the non-disclosure agreements of both Woman #1 and Stormy Daniels at his own cost, plus a tax gross-up payment that doubled the price to the Enquirer, plus a substantial fee for himself.

Has anybody offered an explanation for this odd series of payments? Why did the Enquirer sell the Woman #1 rights to Cohen in the first place, since buying them back with a tax gross-up made it much more expensive to them than just keeping the rights to the story? Why did they also buy Stormy Daniels’ NDA from him, again along with a tax gross-up? Why did they pay Cohen a big fixer fee for the trivial amount of work that he performed in buying and selling back the NDA rights? I haven’t yet thought of a good reason why they would do that. The plea agreement says that the buybacks were prearranged before the election, which could arguably be a campaign violation, rather than after the election, which certainly would not be a campaign contribution (although of course we have only Cohen’s word for that). But it never offers any purpose for the buybacks were arranged in the first place. Continue reading

Saturday Ethics Warm-Up, 8/25/2018: Train Wrecks, Gotchas, Fake News, Idiots, And Progress, Sort Of…

Thus endeth one of the worst weeks in Ethics Alarms traffic in years. It depressed me so much I stopped checking the figures. The comments remained vigorous and high quality, and for that I am grateful. Obviously my being on the road, pseudo-vacationing and without a charged computer were factors, as is August. I do feel, however, that a lot of people just don’t want to be objective, rational or ethical where political news is concerned, just angry and emotional.

Well, at least the libel lawsuit by the banned commenter was dismissed this week.. He told the judge that this was an extreme right-wing website, you know.

1. Not the Michael Cohen Ethics Train Wreck, just the Trump Administration Ethics Train Wreck. On one hand, Cohen is as sleazy, unethical and untrustworthy a lawyer ever to blight the profession (now don’t sue me, Mike, this is just my opinion, not an assertion of fact!), as I noted years ago when I first wrote about the creep.  On the other, Trump was literally asking for a disaster by continuing to employ such an obvious low-life. On the one hand, Trump obviously lying about his relationships with various strippers, models and other sex toys for hire was unconscionable; on the other, “everybody lies about sex” was the official Democratic talking point when Bill was doing it. On the one hand, paying hush money to cover up adultery is slimy, on the other, it’s not illegal, and despite what the news media is selling, it probably isn’t an election law violation either. On the one hand, the news media having yet another impeachment wet dream is disgusting, biased, unethical journalism; on the other, Trump keeps handing the “resistance” ammunition on a silver platter.

Nonetheless, the news media and the Democrats still somehow manage to out-misbehave the President. The latest is the ridiculous argument that the Kavanaugh nomination is now somehow “illegitimate” because the President is under suspicion of illegal conduct. Any pundit or authority who makes this totured and desperate case deserves to be permanently ignored and designated a partisan hack; the current list includes Democratic Senators Mazie Hirono and Ed Markey,  and The New York Times’ Paul Krugman, David Harsanyi explains succinctly for those who can’t figure this out for themselves.

2. Great. Now we have legacy racism to worry about. When the kind of “gotcha!” mentality that prompts people to search for insensitive tweets athletes made as teenagers mates with the corporate cowardice that  prompts a company like Nabisco to cave to complaints by deranged extremist group like PETA, in an environment where “Racist” has become the full equivalent of crying “Commie!” or “Witch!,” I guess this is inevitable. Inevitable, but scary, and really, really stupid.

Lilly Diabetes pulled its sponsorship of Indy racer Conor Daly’s  car in the NASCAR Xfinity race at Road America, because the driver’s father allegedly made a racist remark in the 1980s. I could go into more detail, but it would nauseate me. You can read more here. The sponsorship was designed to raise awareness for treatment options and resources for people living with diabetes.

“Unfortunately, the comments that surfaced this week by Derek Daly distract from this focus, so we have made the decision that Lilly Diabetes will no longer run the No. 6 at Road America this weekend,” the company said in a statement. Craven, principle-free, cowards. I have diabetes, and I want to make certain that the focus is on Lilly’s utter disregard for fairness, proportion and common sense. If corporations are this easy to intimidate—and I think they are—the Left’s escalating efforts to constrain free speech, thought, advocacy and conduct are going to be successful. When will conservatives work to make all those Kennedys pay for old Joe’s pro-Hitler sentiments?  That would be about as logical and fair as punishing Conor Daley for a 30-year-old comment by his father.

3. Remember that story about ICE detaining a man while he was driving his pregnant wife to the hospital when they stopped for gas? It was more pro-illegal immigration spin. The coverage of the news that made it not the “children in cages” anti-Trump propaganda it was spun to be was given a fraction of the exposure that the original, misleading story was. The LA Times eventually told what Paul Harvey called “the rest of the story”:

An immigrant in the U.S. illegally who was detained by federal officers in San Bernardino last week while heading to the hospital with his pregnant wife is one of three men listed in an arrest warrant for a 2006 murder in Mexico. Joel Arrona-Lara is wanted in connection with the killing of Miguel Ángel Morales Rodríguez, alias “El Garcia,” according to the arrest warrant…

Gee, can ICE arrest illegal immigrants who are murderers now, or should we just “think of the children’ and leave them alone too? A recent poll concluded that a majority of the public doesn’t approve of how the Trump administration is handling immigration. Well of course not! Children in cages, innocent expectant fathers stopped on teh way to the hospital, all of those good illegal immigrants minding their own business…

This is disinformation designed to influence U.S. elections.

4. Life Incompetence Department: In Bijie, China, a concerned 26-year-old husband and 24-year-old wife consulted a doctor to learn why they had been unsuccessful in their efforts to have a child for four years. Intercourse was painful for the wife, she said. The doctor explained the problem after some further questioning:  they had been having anal sex the entire time. After he gave them a little instruction book, the wife was with child in short order.

5. Good! The National Federation of State High School Associations reports that  participation in 11-player high school football declined nationwide for the second consecutive year. “We are encouraged that the decline in high school football was slowed, due in part, to our efforts in reducing the risk of injury in the sport,” said Karissa Niehoff, the NFHS executive director, in a statement. “While there may be other reasons that students elect not to play football, we have attempted to assure student-athletes and their parents that thanks to the concussion protocols and rules in place in every state in the country, the sport of football is as safe as it ever has been.”

As safe as it has ever been…..

Comment Of The Day: “Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie” (#2)

Kudos to Michael Ejercito for flagging an excellent discussion of how election finance laws and the Cohen case intersect. He selected the key section that constitutes the bulk of his Comment of the Day, but by all means, read the whole piece at the link, including this:

The best interpretation of the law is that it simply is not a campaign expense to pay blackmail for things that happened years before one’s candidacy—and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime. But at a minimum, it is unclear whether paying blackmail to a mistress is “for the purpose of influencing an election,” and so must be paid with campaign funds, or a “personal use,” and so prohibited from being paid with campaign funds.

Normally, given this lack of clarity, we would not expect a prosecutor to charge those involved with a “knowing and willful” violation, which means a criminal charge with possible jail time. Typically, at most a civil fine for an unintentional violation would be the response. But prosecutors may be using a guilty plea from Cohen as a predicate for going after the bigger fish, and our simultaneously vague, sometimes contradictory, and incredibly complex campaign finance laws give them that opening.

Of course, it is unethical for prosecutors to use the law to “go after” any citizen, never mind an elected President.

Here is Michael’s Comment of the Day on the post, Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie:

http://reason.com/archives/2018/08/23/trumps-campaign-finance-catch-22

“In the Cohen case, the prosecutors hung their hat on FECA’s definition of “contributions” and “expenditures” as anything spent or contributed “for the purpose of influencing any election.” That’s a pretty broad definition, and certainly it may have been thought that paying hush money to Trump’s old memories would “influence an election.” Thus, they argue, payment of the hush money was subject to limits on the size of contributions used to pay, could not include corporate funds, and had to be reported to the FEC.

“But there is another provision in the statute that prohibits a candidate from diverting campaign funds to “personal use.” “Personal use,” in turn, is defined as any expenditure “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” These may not be paid with campaign funds, even if they are intended to influence the election. Continue reading

Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie

Gee, it’s good to be back home…

It took 9 and a half hours to get back to home and office after my CLE tour in rural Pennsylvania, an adventure that also featured a malfunctioning transmission and new Garmin GPS that went rogue, took us in circles once and 20 miles in the wrong direction another time. This is why the ProEthics, aka the Marshalls, never take vacations. It’s cheaper and safer to have such disasters at home.

1.  Explain to me, somebody...why Paul Manafort’s conviction on ten charges that occurred before Donald Trump ran for President and that have nothing to do with Russia or the Trump campaign somehow endangers Trump’s Presidency? Why is this significant news? Why is it on the front page? Now, I can see why his acquittal would be big news, and it would raise fascinating questions about the Mueller investigation’s focus and competence, but the convictions? Please explain. Somebody?

Right-wing blogger Liz Shield’s cynical explanation of why Manafort was involved in the investigation at all is beginning to look good to me. Shouldn’t it? She writes,

He was put on trial because he worked for Trump so that the left can interfere with Trump’s presidency by clouding everything he does with the threat of looming criminal investigations. That way the hyenas on the cable news network have something to squeak about on their nightly clown shows and most importantly, so that no one wants to work for Trump because the cost is too high.

Now, Liz unfortunately resorts to an “everybody does it” defense of Manafort himself, which undermines her credibility:

Manafort was charged with being a sleazy political consultant like many, many others who operate inside the beltway. Did I mention almost everyone in the consulting business in the D.C. area is a sleaze bucket?…Manafort is 69 years old and he faces decades of prison time. He has another trial with more charges in Washington, D.C., and that starts next month.The never-Trump maniacs danced around in glee in their sad Twitter reality, but no one, and I mean no one, could withstand the scrutiny of a federal investigation of this magnitude. I’d love to see any of these never-Trump sad sacks come out clean after a probe by a massive army of government lawyers and investigators.

There is nothing wrong with Manafort being charged, convicted and punished. If what Shield says is true, then more sleazy consultants should be investigated and face the same fate.

2. And speaking of “sleaze buckets” and  “never-Trump maniacs danced around in glee”…The plea deal by ex-Trump fixer Michael Cohen is also being hyped absurdly, though it does have something to do with the President, and definitely raises all sorts of ethics issues. The funniest one is whether anything Michel Cohen says has any credibility at all. Astoundingly, Times columnist Bret Stephens wrote that Trump should resign or be impeached after Cohen guilty plea. This is an excellent example of how the resistance is so hungry for impeachment that it leaps at any theory, no matter how dubious. I seriously doubt that Jack the Ripper could be found guilty of a crime based on the testimony of Michael Cohen. Why does Stephens believe him? Because he wants to believe him, that’s all, even though there are few public figures alive with less integrity or trustworthiness. Has Stephens read the Constitution? “High crimes and misdemeanors” is usually believed to mean “while in office.” A pre-election election law violation, even a serious one, would not, or should not, qualify. Continue reading

From The “When Ethics Alarms Don’t Ring” Files: The Non-Sexual Coat-Hanger Rape

coat-hanger

What’s going on here? We may not  know enough to be sure, but one thing is certain: Deputy Attorney General Casey Hammer’s brain and mouth are not connected to his ethics alarms. Maybe the whole Idaho Attorney General’s office has the same problem.

In 2015, charges were brought against  three white Dietrich, Idaho high school football players alleging that they attacked and sexually assaulted a black, mentally disabled teammate. John R.K. Howard, then 18, was charged as an adult and accused of thrusting a coat-hanger into the anus of the boy while the others held him.

Now 19,  Howard was allowed last week to avoid jail time in exchange for an Alford plea, a device allowed in some states, in which he acknowledges that he would have likely been found guilty in trial but doesn’t admit his guilt.  He pleaded to a single felony count of injury to a child, for which he will be sentenced to only two to three years of probation and 300 hours of community service. In my state, serious traffic violations can get harsher punishment than that.

Deputy Attorney General Casey Hammer “explained” that while Howard’s behavior was “egregious” and caused the victim “a lot of suffering,” it was not a really a sex crime, and so his office agreed to dropping the charge to the lesser felony. This means that in Idaho, apparently, kicking a hanger into a male victim’s rectum doesn’t qualify as rape. I wonder if any object being kicked into someone’s rectum is similarly immune from the charge. Would someone who kicked a hanger into a woman’s vagina be called rape? How about if the assailant was black and the victim was white?

Incredibly, Hemmer’s commentary got worse. “We don’t believe it’s appropriate for Mr. Howard to suffer the consequences of a sex offender,” Hemmer said. “But he still needs to be held accountable.”

Heaven forbid that that a student who does this to a disabled team mate while he is being held by two other students should suffer. We can’t have that.

Continue reading

Johnny Manziel’s Lawyer’s E-Mail Ethics Disaster

email mistake

In an article last year inspired by increased attention in the legal profession prompted by Hillary Clinton’s epic incompetence handling her e-mail, New York’s Legal Ethics Reporter last year published “Ethical Implications & Best Practices for Use of Email.” It began with a quiz:

Which of the following statements are true?

A. Email is a wonderful tool for the successful practice of law.

B. Email not only saves time and money, but also allows for prompt communication with clients, colleagues, and opposing counsel.

C. Email is overused, often results in incomplete or inaccurate responses to inquiries, and fills up your Inbox with useless information.

D. Careless use of email can subject the sending lawyer to embarrassment, unhappy clients, lost income, breach of the duty of confidentiality, discipline, or claims of malpractice.

E. All of the above.

The correct answer is E— All of the above.

One reason lawyers are, as a group, far less forgiving of Hillary’s nonsense (and lies) is that her conduct, if it involved a client, and not just a relatively minor institution like the U.S. State Department, would constitute a clear violation of  the ethics rules covering competence and confidentiality. (Let’s ignore, for now, the rules requiring honesty and the avoidance of conflicts of interest.). Work- and case-related e-mail must be handled with care, or disasters occur. One of the lawyers for disgraced ex-NFL quarterback Johnny Manziel just provided a lesson in how that can happen, and it is going directly into my next seminar.

Defense attorney Bob Hinton, representing  Manziel  in a hit-and-run case, accidentally sent an Associated Press reporter an e-mail intended for the athlete’s legal team. The misdirection appears to be the result of an auto-address feature that assumed whom Hinton wanted to communicate with based on the first few letters he typed.

In the memo, Hinton expresses exasperation at the extent of Manziel’s dependence on illegal drugs, and reveals that he has a receipt that shows Manziel may have spent more than $1,000 at a drug paraphernalia store just 15 hours after he was involved in the crash. “Heaven help us if one of the conditions is to pee in a bottle,”  the lawyer wrote. This is a problem, since Manziel is seeking a plea deal that almost certainly would require periodic drug tests. Continue reading

“We Understand One Of My Colleagues Raped You. Here, Have A Taco, And Shut Up”

taco

Some sadistic and none-too skilled cynic appears to be writing the news, and I don’t appreciate it, especially the news about how our justice system deals with rape.

Felipe Santiago Peralez, a La Joya, Texas police dispatcher, repeatedly assaulted, raped, terrorized,  and forced a woman into performing various sex acts during an “all night invasion of her body” while she was in the custody of the La Joya police department for a misdemeanor probation violation. Even after Peralez’s colleagues and superiors saw the jail security video, they refused to take his victim to a hospital for an examination as required by Texas law for all rape investigations. One of them was  kind enough, she says, to offer her a taco. (It is unknown if she actually ate the taco, or if it was yummy.) An officer also told her that if she breathed a word about what happened, she was liable to go “missing.”

This happened in 2014. The La Joya police chief at the time also saw the video, and reported it to city authorities. As a result, a Hidalgo County grand jury charged Peralez with three counts of civil rights violations and one count of “official oppression”—yes, I would agree that a cop sticking various objects, organic and otherwise, into a confined woman’s vagina without her consent qualifies as “oppression”— and he was sentenced to a whopping 6 months in state jail and 30 days in county jail after a plea bargain.

See? Those Texas types know how to handle rapists with rough, effective frontier justice…none of this lame California sentencing, with a rich kid Stanford swimmer getting just six months because he promises that he’ll devote his life, well, some time anyway, to telling other rich kids not to drink so much that they think unconscious women are blow-up sex dolls. Yup, none of that slap on the wrist nonsense in Rick Perry’s domain! There, a police rapist gets six months AND another month. It serves him right! Don’t mess with Texas!

All of this comes to light in a law suit filed by the victim, referred to as A.R., that names Peralez, the City of La Joya, its former and current police chiefs, its city administrator, several La Joya police officers, the city of Peñitas, its police chief and two more officers there, and asks for 70 million dollars in damages.

I feel like I’m losing my mind. How can an entire community become so corrupt that it would behave this cruelly and unjustly? The police officer who warned A.R. to keep her mouth shut was a woman. The whole story reads like the screenplay of a lurid revenge fantasy like “I Spit On Your Grave,” except that it’s missing the fun part where the victim meticulously tracks down her abusers and tortures them to death in the most ingenious and disgusting ways possible. Of course, it appears that A.R. would have to track down the whole town, including its police force and the grand jury. And the local news media. When the justice system delivers this kind of outrage, isn’t the media supposed to report it, and loudly? Maybe reporters were told that they might go missing too.

Or someone offered them tacos.

The absence of any national reporting on this two-year-old horror is just one of the aspects of the story I find disturbing. Such as… Continue reading

Justice vs. Process: The Case Of The Final, Mandatory, Unjust Sentence

African American in Prison

A full panel of the U.S. Court of Appeals for the 4th Circuit, fifteen judges in all, heard arguments this week  regarding whether they have the power to do anything about Raymond Surratt Jr.’s mandatory life sentence, which just about everybody—-the sentencing judge, Surratt’s defense lawyers and government prosecutors—agrees is unjust.

Until the Surratt case, no federal appellate court has faced the question of  whether a court it has a route to correcting a mistake of its own making when the error is as severe as a mandatory life sentence. The North Carolina father of two is incarcerated at a federal facility in Virginia for a 2005 cocaine conviction. If Surratt were sentenced today, he would face a mandatory minimum penalty of only ten years in prison. If he had been sentenced under current laws in 2005 rather than the laws then in effect, he would be out of jail by now.

Surratt pleaded guilty in 2005 to conspiring to distribute at least 50 grams of cocaine in western North Carolina. The judge said he had no choice under sentencing guidelines other than  to give him a mandatory life sentence because of Surratt’s earlier drug convictions. The judge called the penalty “undeserved and unjust.”

The conviction and sentence were upheld after Surratt’s  appeals. Now he has no appeals left. But in 2011, the 4th Circuit, which includes North Carolina, overruled past practice, meaning that it held that prior convictions as in Surratt’s case should not trigger a mandatory life term.

Now, I know that non-lawyers react to this by thinking, “So what’s the problem? Let him out!” That’s in line with the reaction they have when they hear about a defense lawyer who knows his mad-dog killer defendant is guilty of a heinous, bloody crime (“So tell the judge!”). However, the law can’t be changed on the fly, and the fact that a result may be obviously wrong doesn’t change the importance of addressing it within existing procedures, rules and laws. In this case, no more appeals means no more appeals.

The Surratt case involves the important judicial principle of finality. Prof. Steven H. Goldblatt, who runs Georgetown Law Center’s  appellate litigation clinic, told the court that finality is of vital importance to the legal system. Agreeing, a majority of the Fourth Circuit panel said last year that… Continue reading