In Texas, A Court Puts Some Teeth In A Much Abused Legal Ethics Rule

Tiger

The American Bar Association’s Rule 3.6, Trial Publicity, states in part, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Although the rule is long-standing and included more or less identically in all state legal ethics rules, it is honored more in the breach than with compliance. One has to look no further than the justice-tainting comments by lawyers and prosecutors in such cases as the deaths of George Floyd, Freddie Gray, and Trayvon Martin, but lawyers shooting off their mouths on TV, social media or in the press is common in many other kinds of litigation. Often they are violating not just Rule 3.6, but 8.4 (Misconduct) as well. Among other things, that rule prohibits lying.

Thus the Texas Supreme Court ruling last week was welcome news. The court held that lawyer statements about a client’s allegations in press releases and social media are not protected by the judicial proceedings privilege or attorney immunity. The judicial proceedings privilege protects statements made in open court, depositions, affidavits and other court papers. Attorney immunity protects lawyers from liability to non-clients when lawyers act on behalf of their clients in a “uniquely lawyerly capacity.” That means when they are clearly and appropriately speaking on behalf of their clients, in their roles as advocates.

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Marilyn Mosby Secures Her Reputation As One Of The Most Shamelessly Unethical U.S. Prosecutors Of All Time

The other shoe dropped: prosecutors dropped all remaining charges against three Baltimore police officers accused in the arrest and death of Freddie Gray,  following the acquittals of three other officers  by Circuit Judge Barry G. Williams. He was expected to preside over the remaining trials, and, as the Bible says, the writing was on the wall.

Make no mistake: this result was completely and entirely the result of the incompetent, unethical conduct of State’s Attorney Marilyn Mosby, who vaingloriously announced charges against the officers in the immediate wake of rioting in Baltimore, following the dictates of a mob. She did this without sufficient investigation, evidence or, despite the ethical requirements of her office, probable cause. She had the city of Baltimore agree to a large damages settlement for Gray’s family before any of the officers were tried, prejudicing their cases. She spent millions on the prosecutions, and shattered the lives of all six officers, and yet never made a case that justified any of it.

There are more unethical things that a prosecutor can do, and they certainly do them. Some prosecute individuals they know are innocent, which is a bit worse than prosecuting someone who might be guilty because a mob wants blood. Those unethical prosecutors, however, try to cover their tracks. Not Mosby: she’s proud of being unethical, because its the kind of unethical conduct that African-American activists think promotes justice. Justice is when someone pays with their life or liberty if an African American dies, regardless of law or evidence.  That’s the theory, anyway. Continue reading

It’s Time To Fire And Discipline Marilyn Mosby

Mosby in 2015, ruining lives, pandering to the mob, and undermining justice...

Mosby in 2015, ruining lives, pandering to the mob, and undermining justice…

The third (of six) indicted Baltimore police officer charged in the death of Freddie Gray was acquitted last week, and how the rest of the trials, if they even occur, will play out is now a foregone conclusion. To be fair, this was a forgone conclusion from that moment that Baltimore City Attorney Marilyn Mosby charged the officers a year ago without sufficient justification beyond her own political ambitions, those of her husband (who is now running for mayor), racial bias and a desire to mollify rioters. Most commentators believed the charges were premature, rushed to avoid civic unrest. To say that is really to say that she allowed a mob to dictate to law enforcement. This was unethical, dangerous and despicable then, and remains so today.

If officer Caesar R. Goodson Jr., who drove the police transport van in which Gray suffered the spinal cord injury that killed him, could not be found guilty of intentionally killing Freddie Gray, nobody can. Says the New York Times,

“His acquittal on seven counts leaves the state without any convictions after three trials, in one of the nation’s most closely watched police misconduct cases — and continues to leave open the question of what, exactly, happened to Mr. Gray inside the van….Judge Barry G. Williams, who presided over the Goodson trial, issued the verdicts to a hushed, packed courtroom. He drew no conclusions about exactly when during the van ride Mr. Gray got hurt, saying there were several “equally plausible scenarios.” And he rejected the state’s contention that the officer had given Mr. Gray an intentional “rough ride” and knowingly endangered him by failing to buckle him into the van or provide medical help.” 

The prosecutor isn’t supposed to ruin the lives and careers of presumptively innocent law enforcement officials to try to find out what happened to Freddie Gray. The prosecutor is supposed to investigate until sufficient evidence tells her that a crime was committed, and the she has enough of that evidence to get a legitimate conviction. The three trials have shown that such evidence either doesn’t exist, or was never found. No, we don’t know what killed Freddie Gray, and that’s called “reasonable doubt.” Continue reading

The Most Unethical Prosecutor Of All: Baltimore’s Marilyn Mosby

Mosby

In a legal ethics seminar I taught this week for government attorneys, the vast majority of them voted that Marilyn Mosby’s vainglorious announcement of charges against six officers in the death of Freddie Gray was prosecutorial abuse, and a blatant violation of professional ethics rule 3.8, which directs that (this is the Maryland version)…

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;


(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Of course it was a breach of ethics, and an outrageous one. Her statement, which I discussed here, not only overstated her justification for bringing the charges, which were rushed and announced before a careful investigation was completed, it also stated that the officers were guilty, and worse, that the charges were being brought because the demonstrating and rioting protesters has demanded it. Mosby’s words suggested that she stood with the mob. Continue reading

Trayvon Martin-George Zimmerman Ethics Train Wreck Update: The Unethical “Witness Nine”

She looks credible to me!

Now where were we?

When we last left this ongoing orgy of unethical conduct in every corner, Mr. and Mrs. Zimmerman were caught lying to the judge about their financial resources, claiming to be destitute for bail purposes, and trying to hide all the money that had come in through contributions to their website. Now the judge is buying a ticket, and has ordered the release of the tape recordings of a woman only known now as “Witness 9.”

Witness 9 has a story that is old, irrelevant, but certainly calculated to inflame the public and the jury pool against the defendant. She says…

  • Zimmerman began sexually molesting Witness 9 when she was six years old and Zimmerman was about 8.
  • It continued until she when she was 16.
  • The molestation included forced kissing, fondling, groping, and inserting his fingers into her vagina.
  •  “We would all lay in front of the TV” to watch movies, “and he would reach under the blankets and try to do things. … I would try to push him off, but he was bigger and stronger and older.”
  • Zimmerman’s family doesn’t “like black people if they don’t act like white people. They like black people if they act white.”
  •  Zimmerman also does not like blacks, though she personally she had never seen him disparage blacks or act as though he hated blacks.

Let’s see:

1. An allegation of sexual molestation that is decades old, very strange (Uh, why did you keep watching movies under a blanket with a molester for ten years, ma’am?), impossible to substantiate, and 100% irrelevant to the crime Zimmerman is charged with committing..

2. A bizarre allegation about Zimmerman’s family, that is incoherent. So do they “like” blacks, or don’t they? I don’t like whites who act like idiots. Does that make me racist? And what is “not acting like a white person,” anyway? Not listening to Donny Osmond music? Not playing cricket? What? Is wandering around  in the rain and looking like you are casing houses acting white, acting black, or just acting like a crook?

3. An assertion about Zimmerman’s opinions of blacks that the witness can’t support with any statements or conduct…

4. …that is apparently not based on any recent evidence.

In addition, we know nothing about this woman on which to assess her credibility, except that she has a grudge against George Zimmerman.

There is a technical term for testimony like this: garbage. It was no less than malicious to release it, and is proof, as if more was needed, that the prosecution in this case is not interested in justice, but serving the agenda of activists who have threatened social unrest and violence if Zimmerman isn’t summarily sacrificed on the altar of racial politics. Fair trial? Can’t risk that.

I suppose, in an ethics train wreck of six months duration, it shouldn’t be surprising that George Zimmerman is being railroaded.

CORRECTION: In the original version of this post, I wrote that Witness 9’s testimony was released by the prosecution, and laid blame on prosecutor Angela Corey, who has tried to poison the jury pool in this case already. A helpful commenter produced an earlier news report that indicates that both the defense and the prosecution opposed releasing the testimony.

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Source: Slate

Facts: Orlando Sentinel

Graphic: tramthuynh

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.