Texas

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

/ Jack Marshall / 8 Comments

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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Monday Morning Ethics Warm-Up, 7/12/2021: It’s The Great Stupid, Charlie Brown!

/ Jack Marshall / 24 Comments

Gypsy moth

1. Incompetent Elected Official of the Month: Guess who! Yes, of course it is VP Kamala Harris, and this would be a stand-alone post if I hadn’t begun the day with another Kamala story. You may have heard about this one, if you don’t depend on mainstream media.

The Vice President suggested during an interview at the end of last week with BET News that voter ID laws will make it unacceptably difficult for rural voters who do not live near Kinko’s or OfficeMax to cast ballots. “In some people’s mind, that means you’re going to have to Xerox or photocopy your ID to send it in to prove who you are. Well, there are a whole lot of people, especially people who live in rural communities, who don’t — there’s no Kinkos, there’s no OfficeMax near them,” she warned. “Of course people have to prove who they are, but not in a way that makes it almost impossible for them to prove who they are.”

Naturally the interviewer, the historically unobjective Soledad O’Brien, who was the worst talking head at CNN before the whole network went to Journalism Hell, just smiled and nodded as if Harris had said that the world was round. Elsewhere, Kamala’s idiotic statement got the reaction it deserved. Harris had managed to insult rural America and show her own ignorance in one single gaffe. Kinkos hasn’t existed for several years; it’s called FedEx Office now. Wrote PJ Media’s Bryan Preston, his tongue piercing his cheek,

“Rural Americans have access to these things called ‘smartphones,’ which they can use to scan and send their IDs if they need to. They also have access to these things called ‘scanners,’ ‘printers, and these amazing devices that can scan,  print, and even digitally transmit information wirelessly. It’s like magic, really. Rural Americans also have this amazing communications tech called ’email.’ They also have various means of getting their information from where it is to where it needs to be — in physical form! There’s even a whole government service dedicated to moving physical pieces of paper and even packages from place to place called the ‘U.S. Postal Service.’ We truly live in an age of miracle and wonder.”

One Tweeter writes, “She’s so misinformed and so ridiculous. It’s absurd.” Yes, It’s that trademark Harris smug laziness, all right. If she is going to keep up the dishonest Democratic talking point that voter ID is racist and a means of “voter suppression,” it would be prudent to check some facts. Harris doesn’t do that very often. The episode was reminiscent of President Bush the Elder expressing amazement at a grocery store checkout scanner, causing widespread mockery in the media over how out of touch he was. Yet I can’t find any mention of Harris’s telling botch outside of the “conservative media.” Gee, why is that? When poor Dan Quayle was VP, the fact that he misspelled “potato” was news for a week. Harris shows that she thinks of rural America as a primitive wasteland, and it isn’t newsworthy at the Times, Washington Post, CNN, CBS and the rest.

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

/ Jack Marshall / 1 Comment

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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A Scandal That Compels The Question: If This Can Happen, What Other Ethics Rot Lurks In The Justice System?

/ Jack Marshall / 3 Comments

Texas attorney Weldon Ralph Petty Jr was a busy guy at the Midland County courthouse. By day he appeared before judges as an assistant district attorney. By night, he worked as a law clerk for some of the same judges, sometimes advising them regarding the criminal cases he was prosecuting. This went on for more than a decade.

You don’t have to be a legal ethics whiz to figure out that such conduct isn’t ethical. Prosecutors are barred from privately communicating with judges about cases or matters even indirectly related to their cases. Judges and their clerks are forbidden from disclosing the discussions and in chambers considerations regarding cases to prosecutors or defense attorneys.

Thus Petty, 78, was flagrantly violating ethics rules by simultaneously acting as a prosecutor and a paid adviser to supposedly impartial judges, who were also breaching judicial ethics to a spectacular degree by allowing him to do so. A February story published by USA Today first reported that Petty was paid by judges as a clerk in at least 350 cases from 2001 until his retirement as an assistant district attorney in mid-2019. Seventy-three defendants, maybe more, that Petty prosecuted are in prison. A court opinion issued April 28 calls for overturning Midland County’s only death penalty case due to Petty’s prosecutorial misconduct and the judge’s failure to recuse himself, so Clinton Lee Young, who has been on death row since Petty prosecuted him in 2003, will get a new trial.

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Today’s Dispatch From “The Great Stupid”: The Chivalry Assignment (Corrected)

/ Jack Marshall / 12 Comments

Chivalry

At Texas’s Shallowater High School, a “chivalry” assignment given to female students required girls to “dress in a feminine manner,” lower their heads and curtsy to please men, “walk behind men daintily as if their feet were bound,” and “not complain or whine.” The boys were told to dress in jackets and ties, pick up any object dropped by “the ladies” and to hold doors open, among other things.

The alleged purpose of the assignment was to “demonstrate to the school how the code of chivalry and standards set in the medieval concept of courtly love carries over into the modern day.” An assignment sheet included a set of “rules” with a line for an “adult witness signature” next to each:

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When Ethics Fails, The Law Steps In, And Often Makes An Ass Of Itself…

/ Jack Marshall / 1 Comment

Greg-Abbott

There is no excuse for this:

Abbott tweet

Well, let me clarify that a bit. Anger, frustration, outrage at the open attack on democracy and a level playing field in the marketplace of ideas are all legitimate reasons for someone to default to “there ought to be a law!,” but there is no excuse for elected officials like Abbott and Texas legislators displaying such ignorance of the Bill of Rights.

Stipulated: what Big Tech and the social media platforms are doing right now, deliberately and brazenly attempting to slam their fists down on the scales of democracy to make it as difficult as possible to communicate opinions, news and other expression that our rising woke dictators find inconvenient, is a genuine threat to the nation’s values and existence. However, those same values will be weakened if laws mandating companies to be fair and ethical undermine the First Amendment. As the giddy AUC and my Trump Deranged Facebook friends immediately reply to any criticism of the growing censorship of conservatives and especially President Trump, a private company has a nearly absolute right to decide who has access to its free services. As the social justice crusaders don’t say, but prove every time they make this kneejerk observation, they are thrilled to see their fellow citizens muzzled this way, since it advances their own interests. Big Tech and the social media companies have the right, but it is not right for them to abuse it this way when they have so much control over public debate and information.

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Sunset Ethics Round-Up, 2/2/2021: The Narrative That Refuses To Die, The Weenie Who Whines From A Safe Distance, And Other Tales

/ Jack Marshall / 11 Comments

setting sun

Pop quiz! What’s the significance of the photo above?

It’s official: last month, February 2021 was the worst in Ethics Alarms traffic in five years, and last week was the worst non-holiday week in longer than that. I am at a loss to explain it, and I am going to stop obsessing about it. The comments are among the best and most erudite on the web, and I am confident that the quality and variety of content remains as high as ever.

1. Never give up that narrative! Over the weekend the Times had a puzzling news article telling us that the FBI had “zeroed in” on a suspect in the death of Brian Sicknick, the Capitol police officer who was falsely and repeatedly cited by mainstream media sources and the Trump prosecution in the impeachment trial as being “killed” in the riot or by rioters. The great discovery was that of a video showing someone in the crowd spraying pepper spray or bear spray on officers during the melee. However, as the article itself states, neither irritant is known to be fatal, and both the officers and the crazies were using it that day. Sicknick died of a stroke after the riot, and no link between his death and what occurred while he was trying to control the crowd has been established.

The usual course is to first establish that there has been a homicide, then to look for suspects. “Let’s see if we can pin this on someone” is not considered ethical. I predict that no one will be prosecuted for Sicknick’s death—not ethically, anyway.

2. Speaking of predictions: In yesterday’s post about Governor Cuomo’s apology, I wrote,

[T]he acid test for sexual harassment (and worse) is whether there are additional victims who come forward after the first one breaks the silence. Cuomo is now up to two. It’s a safe bet there are more.

Yesterday a third accuser came forward. Three usually is the tipping point at which even the most protective mainstream media hacks will finally turn on a Democrat. For example, I doubt that Justin Fairfax, the Lt Governor of Virginia, would have survived three rape accusers, but he’s a black Democrat, so the formula is a bit different. The Babylon Bee has it exactly right. Meanwhile, Jim Treacher writes,

Late night liberal “comedians” are finally jumping on the bandwagon to criticize formerly beloved New York governor, Andrew Cuomo. Taking the media’s lead, “Late Show” host Stephen Colbert suddenly found the scandal-embroiled Democrat was an easy target, after several women came forward alleging sexual harassment from the governor.

On his Monday night show, Colbert spent roughly three minutes mocking Cuomo as an “old man” pervert for his alleged creepy comments and behavior towards young women. This after, he spent 2020 grossly promoting the Democrat’s leadership and sex appeal.

These are awful people. They were prepared to ignore the thousands of nursing home deaths Cuomo caused and covered up while praising him as a brilliant pandemic leader (unlike President Trump.) Indulging in the kind of sexual harassment and assault that Joe Biden engaged in regularly while cameras were shooting is too much to bear, however. Now Cuomo is a monster.

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Dumb And Dumber: A Snap Shot Of Our Dysfunctional Civic Discourse

/ Jack Marshall / 12 Comments

Two dumb tweets

If there is any value to Twitter at all, it may be its ability to reveal the intellectual deficits of those who use it.

The above tweet and response is a fine example. Hannah Cox is a libertarian-conservative writer, commentator, and activist, a Newsmax “Insider” and a frequent contributor to The Washington Examiner. Her tweet above is signature significance: any one who could state for public consumption that the United States “is one of the biggest and most intrusive governments known to man” without their brain leaping out through their nose and slapping them in the face cannot be trusted. It is a really ignorant exaggeration, the kind of hyperbole Donald Trump made daily. Overstating a point for the delectation of idiots doesn’t help. It hurts because such statements make an entire philosophy of government seem stupid by misrepresenting it.

The tweet it is responding to, by “proud progressive” Texas State Representative John Talerico, is, impressively, even worse. It is stupid AND scary. He describes himself on Twitter as “youngest legislator, former middle school teacher, and eighth generation Texan.” Then he virtue-signals by adding “1 John 4:8”: that’s the “Good is love” quote. How young is this idiot, 10? Was he frozen cryogenically in 1967 and warmed up to run for the Texas legislature against a slug? What are they teaching in Texas schools? Surely not logic, political science or world history. They clearly aren’t teaching Ben Franklin’s critical observation, “Those who give up liberty for security deserve neither.” Talerico’s tweet is an open-ended appeal to totalitarian government, if he means what he wrote—Texas schools may not be teaching English, either. The opposite of limited government is unlimited government, and unlimited government is “a boot stamping on a human face— forever,” in George Orwell’s chilling metaphor from “1984.” The Texas schools don’t teach that either, I bet.

Sadly, this is the usual level of dialogue between the Left and the Right that now frames our democracy. It’s incompetent; it’s irresponsible, and as we have seen for at least 20 years, it nurtures dysfunctional politics, government and democracy like moisture nurtures mildew.

Ethics Quote Of The Month: Colonel William Travis

/ Jack Marshall / 18 Comments

Victory or Death

“”To the People of Texas & All Americans in the World—Fellow Citizens & compatriots— I am besieged, by a thousand or more of the Mexicans under Santa Anna — I have sustained a continual Bombardment & cannonade for 24 hours & have not lost a man — The enemy has demanded a surrender at discretion, otherwise, the garrison are to be put to the sword, if the fort is taken — I have answered the demand with a cannon shot, & our flag still waves proudly from the walls — I shall never surrender or retreat. Then, I call on you in the name of Liberty, of patriotism & everything dear to the American character, to come to our aid, with all dispatch — The enemy is receiving reinforcements daily & will no doubt increase to three or four thousand in four or five days. If this call is neglected, I am determined to sustain myself as long as possible & die like a soldier who never forgets what is due to his own honor & that of his country —Victory or Death.“

Col. William Barrett Travis, Commander of the Alamo in San Antonio, Texas, on February 24, 1836, as his make-shift fort with its couple hundred volunteers were surrounded by the army of General Santa Ana, and a siege was inevitable.

Travis sent out several appeals for assistance and reinforcement that day, but this one has been enshrined as one of the iconic letters in American history. When the Texas revolution began in 1835, Travis, a failed lawyer, businessman and husband—he had abandoned his wife and unborn child in Alabama to escape his debts and start a new life in the Mexican territory—had became a lieutenant-colonel in the revolutionary army and was given command of troops in the recently captured city of San Antonio de Bexar (now San Antonio). On February 23, 1836, a large Mexican force commanded by General Antonio Lopez de Santa Ana arrived in the town. Travis and his troops barricaded themselves in an abandoned mission repurposed as a fort, the Alamo, where they were  joined by a volunteer force led by Texas land speculator and adventurer Jim Bowie. Later, another, smaller group of volunteers organized by former Congressman and self-made legend Davy Crockett joined them.

Before Travis’s fevered and desperate letter-writing, the Mexican dictator had demanded the fort’s unconditional surrender, promising no quarter if the defenders refused. As his letter said, Travis answered with a cannon shot.

And the rest, as they say, is history.

This is an especially important time for Americans to remember the Alamo.


Comment Of The Day Double Feature: “Ted Cruz ‘Scandal’ Significance: Another Smoking Gun”… And Metaphorical Squirrels (1)

/ Jack Marshall / 9 Comments

Incredibly, some media news sources are still blathering on about how Ted Cruz took his family to sunny Mexico while poor, normal, working Texans were trapped in their freeing homes. The Spectator had some wry words about this on Friday, describing the phenomenon as “squirrels”: distracting but inconsequential attractions the biased news media sends out to avoid covering stories that are unflattering to their client, the Democratic Party. Scott McKay writes in part,

Squirrels. What dog can resist chasing one? And if you don’t want a national discussion of a topic on which your side cannot hold its own, it’s best to set loose an arboreous rodent or two.

Like, for example, if Andrew “Sonny” Cuomo, the New York governor who played Grim Reaper to thousands of his state’s seniors by stashing COVID-19 patients in nursing homes where they resided, would suddenly find himself under scrutiny by the Federal Bureau of Investigation.

That wouldn’t be a good look, would it? The Democrat establishment has done all it could to pump Sonny up as a potential national figure. Considering their bench is so shallow they had to present the decrepit and addled Joe Biden as their nominee for resident, er, president, Cuomo is what passes for a future ace in the hole when Biden has been put to pasture and the Democrats recognize Kamala Harris isn’t sellable to the country even if the dead can be made to vote again in strength.

If Cuomo didn’t offer a future presidential prospect, he would surely be someone to throw under the bus. He’s a gubernatorial Biden — a shameless clown devoid of credibility or competence who represents everything regular Americans despise about the political class. Cuomo is the very picture of our coastal elites: his success owes almost completely to the name he inherited from his father Vito, er, Mario Cuomo and his membership in the ruling-class club. Cuomo spouts all of the pieties of the managerial elite, and he’s mastered the art of faking sincerity when he does so. His abject corruption and incompetence in office is easy to paper over — the Cuomos have run so much of New York’s middle class out of the state there are no longer enough of them to ever vote a Democrat out of office, and therefore their party has perfected at the state level the Weaponized Governmental Failure that’s usually reserved for Democrat machines in the cities.

And of course, brother Fredo — sorry, Chris — hosts a show on CNN when he’s not engaged in pugilism with less-than-adoring viewers or faking a COVID quarantine. CNN’s management actually thinks it’s cute to have Fredo interviewing Sonny on its air despite the breathtaking affront to journalistic integrity that represents. That occasional moment of on-air fraternal bliss suddenly lost its luster when the G-Men began covering the set.

Later, he concludes,

Nor are the squirrels going back into the trees anytime soon, because it won’t be long before the Democrats and their compliant minions in the news media and pop culture recognize the urgency of air cover for all kinds of coming disasters.

There’s the unscientific failure to reopen schools as parents groan under the strain of trying to survive the COVID economy while becoming amateur homeschoolers. There’s the burgeoning failure to fulfill Dirty Joe Biden’s vaccine promises while Biden purports to have conjured the vaccines out of thin air. There’s the fact Biden is calling a lid on conducting foreign policy and delegating it to Kamala Harris. There is the looming disaster in China and Iran policy, and particularly the coming crippling shortage in rare-earth minerals. There is the growing recognition that the Brian Sicknick story, on which the Jan. 6 “insurrection” narrative has been built, appears not to have contained a wisp or a smidgeon of truth.

And on and on.

The problem with squirrels is eventually the dogs lose interest. What comes afterward could be fascinating, and not in a good way.

I feel complicit, a bit, in the squirrel problem, but it is a matter of focus. The cover-up that Cuomo has been credibly accused of is obviously unethical: nobody needs me to point that out. Cruz’s mess, which he blundered into, raised ethical issues, which is why it has been more evident on Ethics Alarms.

Two commenters, Null Pointer and Chris Marschner, have contributed Comments of the Day on the matter, one in response to the other, and they make an attractive matched set. First up is Null Pointer’s COTD on the post, “Ted Cruz ‘Scandal’ Significance: Another Smoking Gun”:

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