The Unprepared Judicial Nominee [Updated]


Matthew S.] Petersen, a lawyer serving on the Federal Election Commission, was one of five President Trump judicial nominees to be questioned by the Senate Judiciary Committee last week. Senator John N. Kennedy, a Republican from Louisiana, subjected Petersen to questions regarding basic litigation law, such as the Daubert standard, which has to do with qualifying expert witness testimony, the definition of a motion in limine, and several other bits of information a junior litigator would have to have in his memory banks. The potential judge told the Senator that he had never tried a case or argued a motion in court. He said he last read the Federal Rules of evidence in law school. “I understand that the path that many successful district court judges have taken has been a different one than I’ve taken,” Petersen said.

Naturally, being a Trump nominee, Petersen is being widely mocked in the news media and by Democrats. Some legal experts have been more sympathetic, like Judge Wayne R. Andersen, who was a federal judge in the Northern District of Illinois for nearly 20 years. He told reporters  that there was a continuing debate within the legal profession about the qualifications required of a trial judge, saying, “Anyone who steps to the federal bench lacks a huge amount of federal experience necessary to do the job,” and that Senator Kennedy’s questions, while fair, “would eliminate 80 percent of the nation’s lawyers and many of the most talented lawyers.”

Lawyer/Blogger John Hinderaker wrote in part,

The lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators. Do we really want to say that all of these non-litigators–the majority of lawyers–are unfit to be trial judges?…does it mean that one of my non-litigator partners would be disqualified from such an appointment, no matter how good a lawyer he or she might be? I don’t think so.

… Newly-appointed judges attend “judge school,” where they are taught the finer points of the rules of evidence….Most lawyers who are appointed to the bench in both federal and state courts have backgrounds in litigation. No doubt that is appropriate. However, it is by no means rare for non-litigator lawyers to be appointed, or win election, to the bench. In my opinion, that is a good thing. I don’t see why a minority of lawyers–litigators–should have a monopoly on the bench. I don’t know whether Matthew Petersen will make a good judge or not. But in my view, he doesn’t deserve to be ridiculed because his highly-successful law career has been conducted outside of the courtroom.

I agree; he shouldn’t be ridiculed for that. Continue reading

Unethical Quote Of The Week: Baltimore Activist Rev. Wesley West, From The Freddie Gray Ethics Train Wreck

Train Wreck

“I’m angry because this is what we deal with, and when I say ‘we,’ we’re talking about the black community and I’m a part of and represent that community as well, it seems like we have no voice when it comes to these issues. When it comes to conversations like this, we’re not involved. This should have been a jury trial where the community had a voice in this case. Of course a system works in a system’s favor, that’s how I look at it. That judge represents the system, and the police officer represents a system, but they’re all one system working together. And again I don’t think case was actually tried fairly when it comes down the community being involved.”

-Baltimore activist Reverend Wesley West, quoted by CBS news, in the wake of Freddie Gray’s arresting officer, Edward Nero, being found not guilty today of all charges brought against him as a result of Grey’s death following his arrest in April of 2015

The Freddie Grey Ethics Train Wreck, a bi-product of the Ferguson Ethics Train Wreck which was a direct result of the Trayvon Martin-George Zimmerman Ethics Train Wreck, is still rolling, in case you wondered.

This is the second trial of the accused officers to support the conclusion by many independent analysts that charges were brought against six Baltimore officers in the tragedy without sufficient evidence or investigation, in order to quell social unrest and mollify African American activists like West. That made the charges, by City Attorney Marilyn Mosby—whose husband just happened to be preparing a run for mayor, a coincidence, of course— unethical, and a capitulation to government by mob.

West is impugning the justice system despite knowing nothing of the evidence presented or what happened in the events leading to Gray’s death. His contention that “the community” should have a say in a police officer’s guilt or innocence is a direct appeal to mob justice. His statement is also factually false, especially in this instance. The community had far too much influence in the prosecution of Nero and the other officers already, using violence and the threat of more violence to extort the city. Continue reading

Comment of the Day on “Ethics Quiz: Jury Nullification For A Molestation Victim”

Here is the Comment of the Day, Eeyoure’s deliciously indignant dressing-down of the jury whose verdict was discussed in today’s post, “Ethics Quiz: Jury Nullification For A Molestation Victim”:

“The jury’s verdict was absolutely perverse.  The jury ignored truth about specific law for which they were responsible for finding guilt or innocence, where evidence existed beyond reasonable doubt that the law was broken.  Simultaneously, the jury concluded that irrelevant evidence, plus the defendant’s testimony, proved guilt beyond doubt of a person who was not charged, not on trial, for breaking of law for which the jury was not responsible for finding guilt or innocence.

“The jury’s verdict was the culmination of an orgy of medieval reparations-groupthink, a determined seizing of lowest available ground in the terrain of societal unrest.  The members of the jury made themselves a proud, self-serving, self-satisfying gang of “justice”-dolers, caught-up in extolling the glories of vengeance.  This was a jury that obviously considered with the utmost gravitas (that is sarcasm) the notion that “justice delayed is justice denied.”  No matter how long was delayed the justice THEY felt was due, they saw it as their sovereign right to determine that such justice would not be denied, and to determine who would deliver (that is, who did deliver) that justice, blameless.  (more sarcasm coming) What a shining moment in jury-rigged righting of historical wrongs! (end sarcasm)

“Well, chances are rather high that none of the jurors will ever read here.  So, they can just each go their merry way, keep marching merrily along as ignorantly and unthoughtfully as ever, proud of the “justice” they have served.  Without ever taking the simplest, tiny, extra step of considering, for example, by their own jury-“reasoning,” how their verdict thoroughly justifies any friends, allies, or sympathizers of the old man who was beaten in the retirement home stalking THEM (the jury members and their hero) for the rest of THEIR (the jurors’ and hero’s) days – then suddenly, at a convenient and opportune moment, beating every one of THEM every bit as savagely as was beaten the man by the assailant whom they let off the hook.

“With “justice” like this jury has upheld, who needs to hold a stinkin’ court?”

Ethics Quiz: Jury Nullification For A Molestation Victim


A San Jose jury acquitted William Lynch of criminal assault, despite his admission that he had beaten a former priest who had molested him as a child. After the acquittal, Lynch was cheered outside the courtroom.

Lynch told reporters he fully expected to be convicted, but had hoped that his testimony would call more attention to the child abuse problems in the Catholic Church. He visited his victim, Rev. Jerold Lindner, at the retirement home where he now lives.  The 65 year-old who allegedly molested Lynch and his younger brother in 1975 was confronted by Lynch, and when he told Lynch that he didn’t remember him, Lynch attacked him and “beat him almost to death” according to witnesses.

Your Ethics Alarms Quiz question:

Was the jury verdict ethical? Continue reading

Ethics Quote of the Week: Prof. Monroe Freedman

“U.S. Attorney Fitzgerald failed to convict Blagojevich on 23 of 24 multiple counts.  But not to worry.  Fitzgerald succeeded in convicting Blagojevich, and destroying his reputation and career, three years ago with a vicious press conference — and without having to bother himself with due process and trial by jury.”

Prof. Monroe Freedman, blogging at The Legal Ethics Forum.

In his press conference announcing the charges against the then-Illinois governor, Fitzpatrick memorably said that Blagojevich’s conduct had Abe Lincoln “rolling in his grave.” He also said: Continue reading