Sixth Amendment

Unethical Quote Of The Week (And Nominated For Un-Self-Aware Quote Of The Year): Hillary Clinton

/ Jack Marshall / 43 Comments

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“If the FBI is watching you for suspected terrorist links, you shouldn’t be able to just go buy a gun.”

—–Hillary Clinton, forgetting all sorts of things in her speech in response to the Orlando massacre.

Cowabunga, Hillary!!! Do you think, while I am trying to explain why the only responsible course for an ethical citizen is to vote for a horrible candidate like  you in order to stop Donald Trump from becoming President Asshole, you might at least try not to make it harder by talking like an autocratic idiot yourself? Do you think you could do that, please?

PLEASE???

Not for the first time, Hillary Clinton just made one of those boomerang assertions that applies to her as much as those she is supposedly criticizing. Her all-time classic, of course, was when she said that the victims of sexual abuse had the right to be believed (unless, of course, the sexual abuser is her husband and meal-ticket, in which case she personally will see that said victim is discredited and destroyed.)

Was the statement in her speech even worse? Hmmm, close one! Here is Hillary, herself under a criminal investigation by the FBI for violating a federal law or five and still running for President because, after all,  it’s just an investigation, and in the Land of the Free and the Home of the Brave one does not lose rights and privileges until one is actually convicted in a court of law. And yet here she is saying that an FBI investigation should suspend a Constitutional right.

Talk about throwing blood in the water. Talk about cynically appealing to low information voters. Talk about pandering. Talk about walking into a buzz-saw.

Talk about stupid…

I would not be the first to ask, fairly and accurately, if Hillary also believes that merely being investigated should suspend other rights, like the right to not to be subjected to unreasonable searches and seizures, the right to have a lawyer, the right not to have to incriminate oneself, and the right to free speech? Does she know that the right to purchase a gun is also as much of a right as any of these? Or is she really saying that she wants to eliminate that right?

Perhaps she was just speaking carelessly, irresponsibly and in vague generalities–like, oh, just to pick an example out of the air, Donald Trump.

You’re not making it easy for me, Hillary.

Not at all.

Ethics Heroes: The Orleans Public Defenders

/ Jack Marshall / 46 Comments

foldersWhen is it your ethical duty to refuse to do your job? Here is one example.

The Orleans Public Defenders office finally decided to force the issue of under-funding for the defense of indigent criminals in the city, announcing last week that, as Chief Defender Derwyn Bunton warned nearly two months ago without any official response, it will begin refusing to handle serious felony cases in which defendants face lengthy or life sentences. Such cases include murder, attempted murder, forcible rape and armed robbery.

The office either needs more funding or reduced caseloads. The city must provide a lawyer for those charged who cannot afford counsel (The 6th Amendment and the Supreme Court insist) , but like almost every city in the nation, the funding for the New Orleans public defenders service is pitiful. With an inadequate staff of lawyers who must handle more cases than it is possible to defend competently, this creates both a Constitutional crisis and an ethical one.

Defense lawyers, like all lawyers, must do a competent job. The professional ethics rules require attorneys to control their workloads: Comment 2 to ABA Rule 1.3, which corresponds to the Louisiana rule, states that a lawyer’s workload “must be controlled so that each matter may be handled competently.” Most public defenders offices know that their clients’ right to representation is being compromised by under-funding, but choose to soldier on, doing the best they can. Several years ago, one office even argued that their clients had “consented” to less than competent representation, because the alternative was no representation at all.  (The court did not agree.)

The American Bar Association addressed this problem in a formal opinion, and wrote, Continue reading →

The Third Circuit Rejects Judicial Immunity In The Case Of An Unethical One Man Justice System

/ Jack Marshall / 2 Comments

crazy-judgeAs I predicted at the time, many readers became upset at the spectacle of judges declaring other, clearly unethical judges immune from civil suit as a result of the judicial immunity doctrine. They will be cheered, then, by this unusual decision by the Third Circuit in a decidedly odd case out of New Jersey.

The Third U.S. Circuit Court of Appeals ruled that a civil rights suit could process against Municipal Judge Louis DiLeo of Linden, New Jersey, who was not reappointed to his post after the incident sparking the action. The lower court judge had denied DiLeo’s motions to dismiss on the grounds of absolute judicial immunity  the 3rd Circuit agreed, saying that the plaintiff had made  a plausible claim that DiLeo’s actions “went beyond legal error, such that he was no longer functioning in his judicial capacity,” the appeals court said in the its opinion . Continue reading →

Ethics Hero: Dick Masten—When Ethics Trumps Law

/ Jack Marshall / 6 Comments
A heroic and ethical snack...

A heroic and ethical snack…

One way I can always start an argument on Ethics Alarms is to state my position that willfully breaking the law is per se unethical as a breach of citizenship. Like all rules, however, this one has exceptions. Dick Masten, the Director of Miami-Dade Crime Stoppers, recently demonstrated one of them.

The former police chief was ordered by Judge Victoria Brennan to reveal the name of a tipster in a cocaine possession case, State vs. Lissette Alvarez. Alvarez was arrested in 2013 and charged with cocaine possession. Brennan called for Masten to come into court and confer with her in chambers regarding the case. Miami-Dade Crime Stoppers sparked the eventual arrest after getting information from a tipster who was assured anonymity. Alvarez’s attorney insists that the tipster’s information is part of the evidence against his client, saying, “Ms. Alvarez, in this case, has every right to confront her accusers. But more particularly in this case, it’s not the accuser, but the evidence that the State will use against her.”

Ordered by the judge to reveal the name of the tipster, Masten, insisted that he couldn’t divulge information to be reviewed in closed court that might be discoverable as evidence. “There is a possibility that looking at certain documents, a defendant could work that case backwards and put the tipster at peril, and I’m not gonna let that happen,” he said. In a dramatic touch, Masten swallowed  a slip of paper that held the tipster’s name. “What is personal to me, is the promise,” Masten said before his ethical snack. “Some of these tipsters could end up dead. Not on my watch.” Continue reading →

Gotcha, NPR! Liberal Bigotry About Bigotry Exposed

/ Jack Marshall / 25 Comments
"Wah, my conSTITuants in the great Southan state of Mawntana just don't wanna see any coloreds get away with shootin' owa law enforcement officahs, that's all!"

“Wah, my conSTITuants in the great Southan state of Mawntana just don’t wanna see any coloreds get away with shootin’ owa law enforcement officahs, that’s all!”

One progressive lie I hear and read repeatedly from Democrats and their news media lackeys is that the Supreme Court “gutted” the Votingl Rights Act of 1965 by decreeing that it was unconstitutional for the Justice Department to use decades old data to presume racial bias in legislative measures and policies adopted by Southern states. This was holding in the case of Shelby v. Holder. The Court justly ruled that Congress had to develop current, accurate criteria. Progressives and the Obama Administration screamed and are still screaming, because pretending it was still Jim Crow, Bull Connor and Mississippi burning in the South gave the federal government a way to over-ride legitimate and non-racist laws (like voter ID requirements), based on bias: if it’s a southern state, it must be racist.

Yesterday, National Public Radio inadvertently demonstrated how this bias operates. I have already written about what is wrong with conservative opposition to Debo Adegbile, President Obama’s choice to head the Justice Department’s Civil Rights division. Essentially, he is being condemned for trying to protect an individual’s civil rights. But the police unions are determined to punish him because that particular individual was a cop killer, and our law enforcement officials don’t think such people have rights. They are wrong, Adegbile was right.

This is not truly a racial issue, but because Adegbile is black, because he worked for the NAACP, because the cop killer is black, because Obama is black and because Democrats have spent the Obama years making everything about race to serve their cynical political needs,  the controversy has been reported as a racial justice issue. It is really a stupidity issue, as I pointed out in my earlier post. It is stupid, ignorant and destructive to treat criminal lawyers as if they support the crimes of their clients.

The police lobby was strong enough, sadly, to defeat Adegbile’s nomination in the Senate, as sufficient Democrats from conservative states decided to cater to ignorance as enthusiastically as their Republican colleagues. Here are the Democratic Senators who voted “nay”:

Chris Coons (Del.)
Bob Casey (Pa.)
Mark Pryor (Ark.)
Heidi Heitkamp (N.D.)
Joe Manchin (W.V.)
Joe Donnelly (Ind.) 
John Walsh (Mont.)

Plus Harry Reid (Nev.), who switched his vote for tactical purposes.

Here is how NPR described them on NPR’s Morning Edition :

“A handful of southern Democrats joined Republicans yesterday to defeat president Obama’s choice to head the Justice Department’s civil rights division.” Continue reading →

The Right’s Unethical, Ignorant, Un-American And Dangerous Attack On Debo Adegbile

/ Jack Marshall / 61 Comments
"How can you trust him to head the Civil Rights Division of the Justice Department? He's a Lawyer!"

“How can you trust him to head the Civil Rights Division of the Justice Department? He’s a Lawyer!”

I don’t know much about Debo Adegbile, President Obama’s choice to head the Justice Department’s Civil Rights division. I know that he could hardly be more of a disaster than the current Attorney General, Eric Holder, and that the odds are that he would have to be much better. It may be that Adegbile is superbly qualified; it may be that he isn’t qualified at all. But I do know, with 100% certainty, that his representation of a convicted cop killer to seek to overturn his conviction is completely, absolutely irrelevant to his qualifications or character, and that for conservatives, Republicans and GOP Senators in Adegbile’s confirmation hearings to argue otherwise is both irresponsible and contemptible.

I first learned of this controversy from conservative radio host Mark Levin, who can really be an ugly hypocrite at times, and this was one of those times. Levin is a distinguished lawyer and an ethical one*; I refuse to believe that he does not comprehend ABA Model Rule 1.2 (b) or its importance to his profession. It reads:

“A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

This principle is essential to allow, not merely the justice system but the entire rule of laws in a democracy, to function properly, and any lawyer who cynically, unethically, and dishonestly undermines it is playing with fire. “It is a move,” writes  Prof. Jonathan Turley, “that strikes at the heart of the notion of the right to counsel and due process”—-but it is much more than that. If every citizen does not have full access to the laws of the land, the ability to use them to his own benefit and protection whatever his purpose, as long as it is legal, then this is not a government by the people and for the people, but rather a government of law-manipulating specialists and experts who bend ordinary citizens to their will through the use of complex, convoluted, jargon-riddled statutes and regulations that their victims can’t possibly understand. Continue reading →

Ethics Quiz: Is It Fair To Take A Criminal Defendant’s Constitutional Right Away If He Keeps Abusing It?

/ Jack Marshall / 12 Comments

"Watch the pencil! WATCH THE PENCIL!!!"

Joshua Monson, standing trial in Washington State for drug charges and multiple criminal assaults, keeps stabbing his lawyers with pens and pencils  mid-trial. He just stabbed his third—the others withdrew because of the conflict of interest created when you are afraid that your client wants to kill you—so the judge ruled that Monson had forfeited his right to counsel under the 6th Amendment in the Bill of Rights. Judge David Kurtz said Monson will have to defend himself without the assistance of counsel and will be strapped to a special chair for the rest of the trial. Kurtz advised jurors to ignore the incident, the restraints and the absence of a lawyer.  Continue reading →