I was going to sing it, but it doesn’t fit the music…
Here is my problem…
Describing the ugly developments arising out of the Democratic Soviet-style show trial aimed at neutralizing Donald Trump by criminalizing his post election excesses, and, if possible, intimidating and harassing his supporters past and present, esteemed former federal prosecutor Andrew McCarthy writes in part, Continue reading
I stumbled across a year-old CBS “48 Hours” episode that depressed me about the state of ethics alarms in the culture, but to be fair, almost everything is doing that right now.
Tracey Harris (with her daughter, above) vanished from her home in Ozark, Alabama on March 7, 1990. A week later, her body was found in the nearby Choctawhatchee River, and the autopsy revealed that Tracey had drowned, though she had marks on her neck consistent with strangulation. Her death was ruled a homicide. Suspicion immediately fell on her ex-husband Carl, who had continued to live with Tracey and their young daughter after their divorce. He was rumored to be abusive, and had been having an affair with a local teen. Investigators believed, but could not prove, that Carl was the last person to see Tracey alive.
Police and prosecutors interviewed over a dozen neighbors and acquaintances of the Harrises, but there was never sufficient evidence to arrest Carl or seek an indictment. However, the community hostility inflamed by the widespread belief that Carl had murdered his popular former wife drove him to leave the county. Tracey’s parents adopted his daughter, who remains permanently estranged from him.
Last week, the New York Times and other media gleefully reported that Mark Pomeranz, one of the senior Manhattan prosecutors who was part of the “Get Trump” effort that has been ongoing in New York almost from the minute he was Trump elected President, believed that the he was “guilty of numerous felony violations” and that it was “a grave failure of justice” not to hold him accountable.” This information came as his resignation letter somehow was released to the press. Pomeranz submitted his resignation last month after the Manhattan district attorney, Alvin Bragg stopped pursuing an indictment of Donald Trump. Bragg had picked up the long-running attempt to charge Trump from his predecessor Cyrus Vance, Trump’s own personal Javert, who did not run for re-election.
What neither the Times nor any other source bothered to point out was that Pomeranz’s public statement that Trump was guilty of crimes were bright line violations of prosecutor ethics both in New York and across the profession.
UPDATE: “I don’t understand how this could happen. Since it obviously can, I wonder how many other outrageous conflicts of interest are rotting the justice system while nobody is paying attention.”
That’s how I started this post when I wrote it yesterday. Here’s how I ended this post, from May 17, just four months ago: “…the fact that something like this could happen at all, and for so many years, should have ethics alarms sounding throughout the justice system, and not only in Texas.”
This is because the two posts are about exactly the same episode. The similarities didn’t ring a bell with me at all yesterday. A new appellate court opinion related to the same outrageous Texas conflict of interest breach came down this month, so I treated the whole episode as new. It took commenter Rich in CT’s note to alert me. (Thanks Rich.) So here are my thoughts while banging my head on my desk:
Once again, I’m sorry.
***
The Texas Court of Criminal Appeals has overturned the 2003 conviction and death sentence of Clinton Lee Young in a Sept. 22 opinion. Why? Oh, just one of those technicalities: on of the prosecutors in the case was moonlighting as a a clerk for the judge in the trial the trial and who considered the the convicted man’s habeas application. That’s all.
WHAT?????
The Pennsylvania State Supreme Court has overturned Bill Cosby’s sex assault conviction, and the 83-year-old comedian/Jello pudding salesman/serial rapist will be released from prison with no chance of his having to go back, according to the ruling vacating his conviction issued yesterday.
Is that justice? Well, it’s a kind of justice, but only for Cosby. Pennsylvania’s highest court overturned his conviction because a previous prosecutor had granted him immunity from prosecution in order to force the Coz to admit to some of his criminal sexual activity. Cosby could not use the Fifth Amendment nor lie without risking perjury charges, so he made several incriminating statements on the record. These should not have been used to convict him later, but a different prosecutor determined that his office was not bound by the previous deal. But it was. Because Cosby’s statements were improperly used against him, the conviction was based on inadmissible evidence. This new ruling bars any retrial in the case.
Much as Bill Cosby deserves to rot in prison, upon reading the opinion, I see no way to criticize the decision. Even bad people have to be prosecuted and convicted the right way, and Cosby, who is about as bad as one can get, was not. I’m sure there is some reason why Cosby’s lawyer wasn’t able to block the use of his client’s damning but unusable testimony before Cosby had to spend time in jail, but so far, I can’t find it.
If a sociopathic predator like Bill Cosby can be freed on the basis of an unfair trial—and he can and should be—so can and should a brutal cop like Derk Chauvin, whose trial was also unfair, though for very different reasons. We shall see how far the integrity of the justice system goes.
Nobody is going to riot over Bill Cosby going free. That, I fear, might be the critical difference.
People, even lawyers, just do not interact much in remote seminars. It makes a three-hour session far more tiring, even though I’m sitting down, rather than stalking through the space. Thus I am blotto now, after a legal ethics session earlier today.
1. And THIS is the best paper in the U.S…Two headlines on the New York Times front page this morning my high school paper faculty advisor would have rejected…and he would have been right:
You might have forgotten this ethics story from last May. That would be understandable. It was momentarily big news (though it should not have been), but it occurred on the same day Derek Chauvin put his knee on George Floyd’s neck, and the George Floyd Freak-out and The Great Stupid soon descended on the land.
The verdict here—you might want to review the post—was that the villain in the story, Amy Cooper, was indeed an asshole for calling the cops on a black bird-watcher in Central Park.She did it because he told her to leash her dog (as the rules required) and began filming her defiant reaction. The other Cooper, Bird-watcher Christian, posted the video, thus severely tearing the fabric of Amy’s life for a single incident of miserable conduct. (“Take that, bitch!”) She was fired and humiliated, and New York banned her from Central Park and tried to put her in jail. Amy is also probably tarred as a racist for life, though as I argued in the post, the fact that she mistreated a black man and attempted to use his race against him doesn’t prove she’s a racist. It just proves she’s an asshole.
Christian, who did his part to blow an ultimately minor dispute into a national controversy, ultimately had second thoughts, and to his credit decided not to pursue a legal vendetta against Amy. I don’t like his rationale for this, which consisted of two rationalizations that I detest: #38 B, Excessive Accountability, or “She’s Suffered Enough,” and the awful rationalization #22, Comparative Virtue, or “There are worse things.” He told a reporter that he felt the lack of D.C. statehood was more important than punishing Amy Cooper. Oh. If there’s one thing that makes me think about D.C. statehood, it’s a rude white dogwalker having an altercation with a black bird-watcher.
I would have had no problem with prosecuting Amy Cooper for making a false complaint to the police if that law were enforced in New York as a matter of course. It isn’t, however. NYC District Attorney Cyrus Vance decided to charge Amy because of the high profile nature of the case, and to grandstand for social justice warriors, using the Minnesota white cop’s knee on black neck narrative as an opportunity. The Ethics Alarms verdict is that this was an unfair and irresponsible reason to pile on Amy, not because she didn’t deserve to be charged, but because the motive behind her charging was unethical for a prosecutor, and indeed racially biased. Vance would not have charged a black Amy under the exact same circumstances.
Now you’re caught up, so this next development can be put in context: the criminal case against Cooper was dismissed a month ago. In part because Christian Cooper declined to support her prosecution, Amy Cooper cut a plea deal that stipulated that if she completed a “therapeutic program” including instruction “about racial biases,” all charges would be dropped. She did, and they were. Amy had faced up to a year in jail if convicted, so a metaphorical gun was at her head. Learn to love Big Brother, or else.
Yecchh.
I have to believe the prosecutors in the George Floyd murder trial know that they are just marking time to but off a repeat of the 1992 Rodney King rioting in Los Angeles, and probably worse.
We know, or should, that former officer Derek Chauvin is not a racist, other than the fact that he is white. This may be enough to make him a presumed racist according to Black Lives Matter and Democratic Party cant, but not under the law. The news media has been diligently searching for Mark Furmin-like racist comments in Chauvin’s past, and if they haven’t found any by now, I think it’s unlikely that there are any to be found.
We know, or should, that Chauvin did not intend to harm George Floyd. He definitely wanted to make Floyd uncomfortable, because he was angry at his perp for resisting arrest. Nobody has argued seriously or persuasively that the officer intended to kill him.
Finally, we know, or should, that it is possible, even likely, that Floyd’s death was caused by his own careless ingestion of prohibited substances, including an overdose of fentanyl.
With these facts, my knowledge of prosecutorial ethics tells me that without the influence of other factors that should not be factors at all, a competent and responsible prosecutor would not charge Derek Chauvin. It is very likely that a verdict of guilty beyond a reasonable doubt cannot be achieved before a fair and competent jury, and prosecutors are forbidden from attempting to convict defendants while hoping that a dumb and emotional jury fails to weigh the evidence properly. If a prosecutor doesn’t think, based on the evidence, that an individual is guilty of a crime beyond a reasonable doubt, then no charges should be brought. That is exactly the situation regarding Chauvin and the death of George Floyd.
A very good friend who is married to another very good friend posted yesterday that Kamala Harris’s swearing in as Vice-President moved him to tears, and the Facebook post instantly harvested about a hundred “likes” and “loves.” As God is my witness, as Scarlett used to say, I had to fight to restrain my self from writing on his page (since there is no “What the FUCK is the matter with you?” icon to click on), “Why, because she’s a woman with no qualifications to be President or Vice-President? Because she’s the first Indian-Jamaican VP, and you’ve always wanted one of those? Because she’s just the right skin-shade to pretend to be an African-American, when she’s not? Does it choke you up because she slept her way to political power, then locked up a lot of black men for drug crimes, then accused the U.S. of being racist because of “over-incarceration”? Or does any Democrat, even phonies and rank incompetents, getting power make you feel all misty inside and out? Really, I’m curious.”
Well, he’s a nice, good-hearted guy who has the political sophistication of a cheese, so I just shut up. However, his reaction is just incomprehensible to me.
1. Oh, look, now there’s black Batwoman. Yay. Isn’t this a little cliched and formulaic by now? Will every fictional character eventually have to be made black or have his or her race switched, and every male character get virtual transexual transitioning, to satisfy the Woke and Wonderful? Mikey (who liked Life cereal), is now a girl. Jake from State Farm is now black. Perry Mason’s Paul Drake in the new reboot is black. Inspection Lestrade, Sherlock Holmes’ ally, is black on the Netflix Holmes spin-off. (Watson became female in the TV show “Elementary.” And Asian!) A really bad movie made Ralph Kramden from “The Honeymooners” black; Norton too. On Broadway, when there was a Broadway, Alexander Hamilton and Aaron Burr were black, and they aren’t even fictional. Of course.The whole Ghostbusters team was turned female for the reboot (but still had only one black member). There is much, much more. Isn’t this lazy? Isn’t this boring? Don’t women, blacks and other minorities want to have their own popular and iconic characters rather than just taking over white or male ones? Why isn’t such fake “diversity” an insult? Aren’t hand-me-down characters like hand-me-down clothes?
For me, the most stunning ethics moment in the Netflix documentary “Jeffrey Epstein: Filthy Rich” was when Prince Andrew, a long-time pal of the late sex-trafficker/billionaire Jeffrey Epstein, appears on camera and engages in a spectacular Jumbo. In a televised interview, the brother of Prince Charles claimed he never met Epstein—though there are photos of the Prince standing with him. He also said he had no recollection of knowing the woman pictured in the photo above, who was one of the under-age girls Epstein sexually exploited and passed around among his friends. The woman in the background is British socialite Ghislaine Maxwell, who served as one of Epstein’s procurers (and who was recently arrested as an accessory to his crimes). Yet when Andrew was asked how he explains the photo if he never had anything to do with the American teenager it shows him with his arm around, he said, incredibly, “I can’t explain it.”
Wow. “Photo? What photo?” “Teenage sex toy? What teenage sex toy?” “Pedophile billionaire? What pedophile billionaire?”
All Jimmy Durante had to deny was the existence of the stolen elephant he was holding at the end of a rope.
Reasonable minds may disagree about the worst ethical breaches on display in the documentary; there are so many. Epstein, of course, was scum—a predator, a sociopath, and a crook. I found no surprises regarding him personally. I also knew that wildly wealthy villains have the ability to corrupt everyone around them, but the supporting cast of the Epstein story provides bracing reminders, such as… Continue reading
Ethics Alarms 