If This Post Seems Like Déjà Vu, There’s A Good Reason: The Texas Law Clerk-Prosecutor [Update]

Justice scales bad

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:

  • I apologize. It’s not as if there aren’t really new and horrible ethics stories to consider, especially in the law and the justice system. It’s OK if I waste my time, but its inexcusable to waste yours.
  • I like the first post better.
  • Silver lining: at least the posts don’t contradict each other.
  • The association of legal ethicists I belong to scooped the ABA on this one, discussing the prosecutor’s conduct long before the legal press caught up to it. One more reason to renew my membership.
  • I could write that this scandal is so outrageous that it is worthy of two posts, and maybe more. It is, but that doesn’t excuse the fact that I’m an idiot.
  • I think this has happened to me once before. But what do I know?

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?????

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On Bill Cosby’s Get-Out-Of-Jail-Forever Card…

Bill Cosby4

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.

Post-Zoom Hangover Ethics, 3-31-21….

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:

  • “Gaetz Said To Face Inquiry Over Sex With Underage Girl” The fact someone says it is not news. Is he “facing an inquiry” or isn’t he? “Three people briefed on the matter” isn’t a source: we’ve seen how accurate the Times anonymous sources are, especially when the subject is a Republican, a conservative, and a Trump supporter. Why the front page for a rumor? Slow news day? Hey, I’ve got an idea: How about an article about how Joe Biden called Georgia “sick” based on a complete misrepresentation?
  • “Taliban Believes The War’s Over And They Won.” This is psychic news again, my favorite fake news form. How does the Times know what the Taliban “thinks”? Who cares what it “thinks”?

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From “The Rest Of The Story Files,” The Resolution Of The Great Central Park Dog-Walking Controversy, And I Don’t Like It One Bit

Amy Cooper

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.

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More On Why Minneapolis Is Headed For Rodney King Level Riots

Rodney King Riots Timeline

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.

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End Of Day Ethics Sighs 1/21/2021: Here’s Kamala! Here’s Batwoman! Here’s Your Newsmedia! And “Heeeere’s Johnny!”

sigh

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?

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A Jumbo For The Ages And Other Ethics Observations on “Jeffrey Epstein: Filthy Rich”

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

An Unethical Quotes Of The Week Cornucopia!

So many people are saying so many irresponsible, dishonest and stupid things in the throes of the Wuhan Virus freakout that I can’t possibly run all of them, or even a representative percentage, but I can’t let these pass.

1. President Trump, yesterday…

“This is a pandemic. I felt it was a pandemic long before it was called a pandemic.”

Sometimes I think the President is actively trying to make people’s heads explode. As the New Yor Times quickly documented (on the front page), this is historical revisionism, gaslighting, or insanity.

  • On Jan. 22, asked by a CNBC reporter whether there were “worries about a pandemic,” President Trump replied: “No, not at all. We have it totally under control. It’s one person coming in from China, and we have it under control. It’s going to be just fine.”
  • On Feb. 26, at a White House news conference, he said,  “We’re going to be pretty soon at only five people. And we could be at just one or two people over the next short period of time. So we’ve had very good luck.”
  • On Feb. 27: “It’s going to disappear. One day — it’s like a miracle — it will disappear.”
  • On March 7, when asked if he was concerned that the virus was spreading closer to Washington: “No, I’m not concerned at all. No, I’m not. No, we’ve done a great job.”

As I have written here before, I refuse to make a big deal out of Trump being Trump, and those who do are simply being self indulgent. Some irresponsible statements are worse than others, and yesterday’s was especially outrageous. It’s in the category of lies that are almost not lies because no one could possibly believe them, like if the President said he was a Stegosaurus. However, if the public knows that whatever he says might be a temporary fantasy, his leadership ability is seriously handicapped. The problem with this kind of statement isn’t that it’s so obviously untrue, but that saying it is so spectacularly self-destructive and stupid.

2. MSNBC Analyst Glenn Kirschner, a former Assistant U.S. Attorney, in a tweet: Continue reading

Morning Ethics Warm-Up, 7/10/2019: The All-Star Game, The National Anthem, Quotas, And Secretary Acosta

Good morning!

1. All-Star Game ethics reflections (with a dash of women’s soccer):

  • Competence. Can someone tell me how many different keys MAX wandered into while trying to sing the National Anthem at the MLB All-Star game last night? He was flat, he was sharp, he fluctuated mid-phrase.  My rule is that I don’t care to hear a singer’s self-indulgent riffs at the end of the anthem if he couldn’t sing the real notes accurately earlier. That was awful. I know: it’s a tough song to sing on pitch without accompaniment, but these people are supposed to be professionals, and that was an amateurish, sloppy job.Incredibly, MAX has performed the Star-Spangles Banner at other sporting events.

Somebody tell him.

A saving grace: at least he remembered all the words (more or less) and didn’t kneel.

  • [ Speaking of kneeling: Women’s soccer team captain Megan Rapinoe “explained” her disrespecting the National Anthem (in defiance of her own team’s rules) while representing the nation abroad, telling Anderson Cooper last night (of course Anderson had neither the wit nor integrity to challenge her nonsense,

“I think that protest is not comfortable ever. It’s going to force people to look inward and question everything they thought that they knew….taking care of others, standing up for yourself and other people if they don’t have the ability to do so, is very uniquely American…I don’t think anybody can deny the horrors of racism and Jim Crow and mass incarceration and what’s happening on the southern border and gay rights and women’s rights.”

This is a sub-breed of Authentic Frontier Gibberish, the increasingly common species called the Self-Righteous Virtue-Signaling Authentic Frontier Gibberish, or “Kaepernick-speak,” SRVSAFG for short.. If an athlete hates the country because of its past mistakes more than he or she is proud of the country because of what it stands for, aspires to, and has accomplished, then it is hypocritical to play for a national team. “What’s happening” on the Southern border is an under-funded law enforcement and security agency doing the best it can to handle a flood of deliberate law-breakers who have chosen to endanger their own children. “What’s happening” in gay rights is that they are stronger now than they were during the first term of the previous administration. “What’s happening” in women’s rights is a healthy national debate over whether those rights should include an upon-ended right to end the life of  another human being—none of which has anything to do with soccer.

But I digress–we were talking about an American sport, baseball…

  • Integrity. Fox’s baseball broadcasting is marginally better than ESPN’s but only because Fox doesn’t include a sociopathic steroid cheat like Alex Rodriguez on its broadcast team. However, the devise of having live interviews with the players on the field during the game is offensive and insulting. MLB is foolish to allow it.

2.  Oh for God’s sake...In her review of “Dog Man: The Musical,” New York Times reviewer Laurie Graeber writes, “[M]y only quibble is the same one I have with the novel: All the really interesting characters are male.” Okay, it’s only a quibble, but it’s an offensive and biased quibble, and since her editor–if the Times still uses editors; I see no sign of them of late—didn’t have the sense to slap her down, it’s up to the rest of us. What does she want, EEOC quotas in every story now? Yes, that’s exactly what she wants, and the idea is creatively stultifying. This quibble leads to other similar quibbles, and the next thing you know, a production of “Twelve Angry Men” or “That Championship Season” or “The Fantastiks” will be labelled racist, sexist, homophobic or “ablist” because it does’t perfectly balance its casting with an equal number of men, women, blacks, Asians, Hispanic, gay, transgender, non-binary, “differently-abled” characters. If there aren’t enough characters to get them all in, then eliminate the white males.

Graeber’s “quibble” is based on tribalism and bigotry, and she should not be allowed to get away with it without a fight.

3. Apparently Labor Secretary Acosta is resigning today. GOOD. Ethics Alarms covered the reasons this is necessary and now long-past due in a November 2018 post about the revelations involving Jeffrey Epstein’s unconscionable plea deal. I wrote then..

I do not see how Acosta can remain as Secretary of Labor following these revelations, incomplete as they are. I don’t see how we can trust his judgment, and even if, somehow, he could justify the deal with Epstein on legal, technical or pragmatic grounds, I doubt that the general public would be reassured. He should resign.

Yet it took eight more months and a new set of charges against Epstein for President Trump, or Acosta to accept the obvious and to do the right thing. There’s no excuse for this.

Robert Mueller’s Bizarre And Unethical Public Statement

There have already been comments on Ethics Alarms regarding Robert Mueller’s surprise public statement to, I assumed, clarify some things being muddled in the political grandstanding and media mush. Frankly, I am not certian what  he thought he was doing, but my suspicions aren’t pretty. The statement was either unethical, or incoherent. Just so we are on the same page, here is the full statement. I’ll be back at the end… Continue reading