The Unethical Sentencing Of Dr. Lawrence Nassar

Non-lawyers and journalists mostly cheered Ingham County Court Judge Rosemarie Aquilina’s grandstanding, self-indulgent, unprofessional and unethical handling of Dr. Larry Nassars’s sentencing yesterday. Nobody bothered to seek the opinion of criminal lawyers and judges, much less ethicists. If they had, they would have heard a loud, collective, “Ugh.”

It was a disgrace. I object to victim impact statements in sentencing, a terrible idea pushed by victim’s rights advocates, because it misrepresents the purpose of the justice system. The objective is to punish citizens for violating laws, not to get revenge for victims or their families, not to get “closure,” and not to satisfy emotional needs. The process isn’t personal, or shouldn’t be. If it is personal, then it isn’t objective. Judge Aquila threw all of that out the window as she played to the cameras and the mob.

Criminal defense lawyer and blogger Scott Greenfield aptly explained what was unethical about the parade of victims:

Nassar’s sentencing hearing is a clear example of a judge straying from promoting the public’s trust in a fair and impartial judiciary. Let’s begin with Judge Aquilina’s decision allowing over one hundred and sixty victim impact statements across seven days. 

Victim impact statements are theoretically allowed as a means of giving a crime victim the chance to describe their experience to the court. Defense lawyers aren’t typically fans of them, and too many can arguably have a prejudicial effect against a defendant.

Contrast Nasssar’s hearing with that of Dylann Roof, the Charleston shooter responsible for the deaths of nine churchgoers. Judge Richard Gergel admonished the State’s list of thirty-eight statements, cautioning against a “spectacle”. David Bruck, the attorney assigned to advise Roof, claimed the proceeding violated “every principle restraining victim impact statements under the 8th Amendment.”

Strangely, no advocate stood to question admitting impact statements from over 160 victims, including gold medal Olympians, might prejudice a jurist’s decision. It’s hard to imagine Judge Aquilina even entertaining such an argument.

It is also hard to imagine Nassar’s sleepwalking defense attorney making such an objection. She was praised by the judge for taking on an unpopular client, but taking him on isn’t enough. She was supposed to protect his rights.

Then the judge delivered her sentence, turning her moment in the national spotlight into a self-aggrandizing, virtue-signalling, vainglorious soliloquy to the gallery. This was one more example of why televised court proceedings are a bad idea.

I’m going to give you the whole transcript of her remarks, bolding the sections before my comments. Cut to the bolded sections if you don’t care to experience the full measure of Judge Aquilina’s narcissism. One section,, however, was left out of all the published versions that I could find:

“Our Constitution does not allow for cruel and unusual punishment. If it did, I have to say, I might allow what he did to all of these beautiful souls—these young women in their childhood—I would allow someone or many people to do to him what he did to others.”

The judge apparently had this excised from the official transcript. No wonder. She is advocating prison rape and by doing so, endorsing it. Michigan’s judicial ethics standards require in part,

“A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.”

Needless to say—I hope—‘I wish I could have you gang raped’ does not meet this standard. It is also troubling that a judge would distort the record. She said what she said, and the public should know she is the kind of jurist would say something like that—an unethical one. The state’s judicial panel should also know.

Here is the rest: Continue reading

Ethics Hero: Lawyer/Blogger Scott Greenfield

No question: Justice Holmes would think Scott Greenfield is a good man.

No question: Justice Holmes would think Scott Greenfield is a good man.

Criminal defense lawyer and caustic, if trenchant, blogger Scott Greenfield stakes out a noble and correct stand on legal ethics and ethics generally in a superb post titled, “What Tastes Good To You?” Read the entire post, but his essay springs from a question that has been posed in various forums (including,  in slightly different form,the Jack Lemmon comedy “How To Murder Your Wife”), to wit:

If you could commit any crime and get away with it, what would it be? 

Greenfield’s answer, the ethically correct one, is “none” : “Just because we can get away with it isn’t a reason to do wrong.” Thus does he definitively separate himself from what Justice Oliver Wendell Holmes referred to as “the Bad Man” in his famous 1897 essay, “The Path of the Law.”  For Holmes’ “bad man” never breaks a law, but only because he abhors punishment.From this starting point, Greenfield considers a professional debate about whether the legal marketing tactic (as determined by the courts) of buying up another firm’s name as a web “key word” to lead customers to one’s competing firm is “unseemly,” which is to say, unethical, though not technically unethical under the professional rules of conduct. One of the defenders of the practice describes the division on the issue to a difference in “taste,” leading Greenfield to aim carefully and fire: Continue reading

Spam Ethics

I was not previously familiar with the extent of that scourge of all blogs, spam. Nor did I realize that deciding which comments qualified for instant deletion would involve an ethical balancing act, but it does, and I am getting the hang of it.

WordPress, thankfully, gives its blogs a program that flags the most obvious spam, fake, automatically generated comments that have nothing to do with the post they are attached to, entered only to get publicity for websites that are selling something. Sending out this junk is pretty sleazy: it aims to junk up a serious website with dishonest drivel and use it as an unwilling billboard, usually for less-than-admirable products and services. The worst ones try to waste my time as well, falsely “alerting me” that my blog doesn’t work with their browser or that my RSS feed is malfunctioning. This kind of spam never gets through the door. Continue reading