Comparing the cases
Many
conclusions are obvious from the three January 2014 State Bar cases reviewed by
the California Supreme Court; but they were obvious years ago. Among them: the
Supreme Court doesn’t review cases to reverse convictions, and the Supreme
Court is supremely concerned with managing its status and manipulating its public
image. But some new trends do present, so I won’t belabor the obvious. The most
important and unexpected trend is the Supreme Court’s refraining—in each of the
three cases, Garcia, Grant, and Glass—from inferring moral turpitude from deficient candor during
the hearings themselves.
A
related trend: the prevalent defense in California State Bar
moral-turpitude matters may seem to be “My lawyer said it was OK.” At least that’s
so if we generalize from the three decisions. Although the recipients were, in
all cases, trained lawyers, they, in each, blamed bad legal advice for their
egregious conduct (Glass and Garcia) or false confession (Grant). The court never generalized (or
even noted) the issue of whether lawyers can rely on counsel for their ethics;
how could it, when no consistent policy can be extracted from the results, the
court’s placing considerable weight on the excuse, in one case, and discounting it,
in the others. The court’s doctrinal evasion and inconsistency reveals,
nonetheless, a tenacious purpose: increasing its liberty to make political decisions
(without inconvenient ethical considerations) and increasing its opportunity to
issue “politically correct” dicta. In each case, the court should have found
moral turpitude based on the candidate or respondent’s conduct in the hearing
process itself. The court refrained from repudiating the lawyer-blame theory, to
avoid either deciding against the candidate (Garcia) or sacrificing opportunity to expound its politicized dicta (Grant and Glass). The court (expressly in Garcia,
tacitly in Grant and Glass), allowed the lawyer-blame defense
to excuse lack of candor.
A
final point for comparing the cases is the inconsistent role of character
witnesses, who are taken very seriously in Garcia
and given no apparent weight in Grant
or (ultimately) in Glass.
In re Garcia
The
most flagrant acceptance of the blame-the-lawyer excuse was in Garcia, the candidate who is an illegal
immigrant. After living in Mexico for eight years, Garcia returned to the
United States (where he had previously been brought illegally) in search of
employment. Garcia landed the job that got him started toward respectability by
lying about his immigration status, but he avoided the bar-examiners' questions about the job application
by claiming his memory of the events was hazy. (Who could fail to remember obtaining their first employment under conditions of illegality?) He subsequently checked with the former employer
to determine whether a record of the application endured, and on
finding it did, he supplied a copy to his attorney, who advised him to withhold
the information. Two weeks later, Garcia’s attorney had (for reasons unremarked) a change of heart, and he disclosed the evidence. The court should
have denied Garcia admission for this flagrant lack of candor.
But
the Garcia case was a political
event, staged by the entire California establishment. If you’re chafing at the bit to give
illegal immigrants citizenship, it’s inconvenient to admit that their unlawful
presence is inconsistent with their practicing the best ethics. Garcia was a heavily
networked test case for open-borders jurisprudence; he even had a pro bono lawyer (the one who supposedly
provided the bad advice and who apparently isn’t being targeted for discipline
for advising the candidate to suppress evidence).
By disregarding Garcia's turpitudinous lack of candor as well as ignoring its implications for
the credibility of his other claims, the court could focus on subjective interpretation. The opinion apprises readers that the Bar had
conducted a very thorough investigation; then, why hadn't the investigation uncovered
Garcia’s deceitful application? The opinion extols Garcia’s character
references, such as his law professors, who testified to his sterling moral
character; but what does a night-school law professor learn of a student’s
moral character? With a networked candidate like Garcia, character witnesses are
inevitably favorable; they should be discounted accordingly—especially when the court is presented with immediate evidence of the candidate’s lack of candor.
In re Grant
Before the Supreme Court reversed, the Review Department had found a failure of proof that Grant knew child pornography was saved to his computer, despite Grant's pleading guilty to possessing it knowingly.
Grant explained that he had erred in his plea: he—and his lawyer—had believed that the offended statute equated bare possession with knowing possession. The excuse is
preposterous.
The Grant court downplayed Grant’s
disingenuousness because condemning deceptiveness isn’t as opportune as
espousing political correctness. The court expatiated on how possessing child
porn demonstrated moral turpitude, to twist the meaning of that term,
disassociating it from fitness to practice law.
The
court’s arguments, the standard fare on the subject, are worth rehearsing because the court evidently believed saying it important. The court denied that
possessing child porn is a victimless crime because the porn industry (like any
industry) is driven by a market; but being part of an abstract “market” doesn’t
constitute a proximate cause for the production of pornography. The court added
the second standard argument: possessing porn perpetuates the child’s
degradation. This invokes an artificial harm that doesn’t bear on the child’s
actual well-being. To prescribe that the consumer of child porn is guilty of bestowing market share and perpetuating degradation is, essentially, to create a
thought crime: the same logic applies regardless of the existence of a
physical representation. If the user trashes the images, should he not be
prosecuted if he doesn’t take measures to forget them? The creation of these
purely mental images is the end goal of the pornography industry, but that
never justifies punishing the mere consumption of information. (Moreover, how
can you ban a practice in a democracy and prohibit citizens from exploring the
object of the ban?)
Laws
against consuming images (or texts)
are blatantly unconstitutional. As Justice Brennan wrote in dissent in the case that, regrettably, validated child-porn-possession laws, Osborne v. Ohio (1990) 495 U.S. 103
[quoting Stanley v. Georgia (1969)
394 U.S. 557]:
If the
First Amendment means anything, it means that the State has no business telling
a man, sitting alone in his own house, what books he may read or what films he
may watch.
Although
the California Supreme Court’s decision was predictable, to conclude that
possessing child porn is moral turpitude takes a step further than its simple
criminalization. The Osborne court’s mistake
was to apply an ordinary balancing test (rather than a clear-and-present-danger
test) to a core First Amendment right. The California Supreme Court
turned the policy decision into a moral manifesto, one corresponding to the
current politically correct California orthodoxy.
Grant
produced character witnesses, all the more impressive because of his own status
as a “registered sex offender”; the court downplayed their significance.
In re Glass
Glass,
of course, never had a chance, public image having become the overriding
purpose of character-and-fitness evaluations. From what planet hails an
observer who thinks the Supreme Court will permit the world to joke that Glass
was too dishonest to be a journalist—but is fine as a lawyer? Glass showed remarkable lack of candor about the extent of his cooperation in disclosing his
falsehoods, blaming his failure to make full disclosure on, whom else, his
lawyer. Glass did worse than claim that he delegated to that attorney performance
of his promises about the clean-up effort: he misrepresented his (purported) acts
of delegation as his personal compliance. Glass had also failed to reveal many
of his lies when he applied to the Bar in New York.
But
denying Glass admission for lack of candor doesn’t appeal to the demagogic
temperament of California’s Supreme Court justices. Why waste an opportunity on
mundane defects of character when there are grave matters of political
incorrectness to denounce? By paying scant regard to Glass’s lies to the court,
the court expanded its opportunity to incite political sentiment. It exposed
Glass as a racist, some of his published lies having put blacks in a disagreeable light! The
court again created a thought crime—the objectionable racist motive—with which
it compounds Glass’s bare perfidy to his readers, much in the manner of
hate-crime laws, which are also obviously unconstitutional. The court implies
that those with Glass’s views on race
are unfit to practice law.
Glass’s
character witnesses had been worshiped by Judge Honn in the Hearing Department,
but they were often disdained by the Supreme Court. (But some of Glass’s
character witnesses were undeservedly respected, such as his psychiatrist, who
offered an optimistic prognosis completely at odds with the evident reality.)
Some of their comments truly discredited these witnesses. A Georgetown University law
professor couldn't grasp the propriety of inquiry into Glass’s having claimed
credit, on his law-school application, for journalistic awards that Glass garnered
by means of fraud; the professor became indignant. But while the fact is
relevant that Glass’s very standing
for bar admission depends on his lies in getting accepted to law school, the point
could also be made (but wasn't) that Garcia, too, got his start through an act of undeniable moral turpitude.
The Glass court refrained from drawing
conclusions about the trustworthiness of orchestrated character references.
In its pretended supervision of the State Bar, the California Supreme Court is concerned only
with its own posturing, now expressed in a strident political correctness, which has become so important to the Supreme Court that, for the sake of its expression, the court will downplay even candidates or respondents' lack of candor, letting their lawyers assume blameless responsibility.