ethics

Former Juvenile Judge Jailed

In 2014, former Hamilton County Juvenile Judge Tracie Hunter was convicted of a felony for giving her brother, a juvenile court employee, confidential information.  Then Judge Norbert Nadel sentenced Ms. Hunter to 6 months in jail.  Since then, Ms. Hunter has appealed the conviction in both state and federal court.  In May 2019, federal court Judge Timothy Black found that Ms. Hunter had received a fair trial.  He refused to comment on the sentence, which he said was for the state court to decide.

On July 22, 2019, now Judge Dinkelacker ordered Ms. Hunter to begin her 6-month jail sentence.  Chaos erupted in the courthouse as Judge Dinkelacker ordered the deputies to take Ms. Hunter into custody.  Hunter went limp in a deputy’s arms, resulting in her being dragged from the courtroom.  Now retired Judge Nadel stated that Ms. Hunter was convicted by a jury, was unrepentant for her misconduct, and the sentence was a correct one. Hunter supporters claim the conviction was politically motivated due to Ms. Hunter, a Democrat, taking a seat formerly held by a Republican.

On October 21, 2014, Ms. Hunter’s Ohio law license was suspended due to her felony conviction.  A felony suspension is an interim suspension.  Now that all appeals or proceedings have been concluded, Ms. Hunter will undergo disciplinary proceedings to determine the length of her suspension from the practice of law.

ethics

Sentencing Based on AI?

In 2013 in LaCrosse, Wisconsin, Eric Looms was sentenced to 6 years in prison after he pled guilty to eluding police in a stolen car.  He denied any involvement in a drive-by shooting involving the vehicle.   The sentence was at the upper end of the guidelines for the crime to which he pleaded.  The judge’s sentence was based, in part, upon the recommendations of an artificial intelligence (“AI”) program with algorithms that assess the risk of violence and recidivism.

Not only did Loomis appeal, but the AI community also criticized the decision, which raises questions as to the role “big data” is playing in everyday decisions.  Loomis’s appeal complained that he was not given a chance to evaluate the algorithms.  Its assessment based on his gender violated his due process rights, claims Loomis.  At a court hearing, an expert testified that the algorithms have a tendency to overestimate an accused’s risks.

Henry Kissinger says of the use of AI, it is “how the enlightenment ends.”   Stephen Hawking cautioned that it could be the end of the human race.  Concerns include that a despot could include it to “enforce censorship, micro-target propaganda and impose society-wide controls on citizens.”  Used inappropriately, it could act indiscriminately and invasively. AI algorithms used in social media can deepen social tensions.

“People worry that society is handing over decision-making to secret software codes – essentially instructions – that have no understanding of the context, meaning or consequences of what they do. ”  The fear is that the algorithms magnify the bias and flaws of their human coders and the data inputted.

The use of AI in decisions such as Mr. Loomis’s sentence is raising a whole host of serious ethical issues. The biggest ethical issues are the use of AI in editing genes in babies, the tech’s use in warfare, and data gathering.  Interestingly, Google employees forced the company to quit a project that oversees AI use in drone attacks.  Many wonder how such employees can have such an effect on the military’s ability to protect the nation’s interests.  A key ethical issue is how much power AI companies can have in a democratic nation-state that has definable borders.

The AU has set up an AI Code of Ethics. Many AI companies are developing principles around AI use and setting up ethics boards to monitor its deployment. Platforms are being developed to limit AI’s ability to spread viral extremist content.  Data gathers are protecting their user information while U.S. tech employees rebel against the use of AI in warfare.  “A UK inquiry in 2019, for instance, has called for a deterrent-enforced code of conduct on data gathering and for users to have the ability to move their data to other parties and make their data available to competitors.”

Says one AI authority:  “Be aware that AI is being deployed at a faster rate than ethical issues can be properly identified and resolved. ”

The tech industry is united in fighting privacy exemptions for intelligence agencies “because ‘back doors’ and ‘master keys’ provide openings for hackers.”  A critical ethical issue, yet unanswered, is how much privacy individuals should be forced to give up to allow governments to provide safety.  Another question is what role private companies should have in setting these limits.

“One example of underhand data gathering is when platforms secretly track users after they leave their sites. Another is the way facial-recognition companies ‘scrape’ photos on the internet – use any published photo – to hone the technology.”

An ethical issue surrounding the use of AI is whether the algorithms can deliver a fair outcome.  Other questions involve the transparency of the process and a right of appeal. It is true that algorithms can process data and discover patterns far faster than humans can. Its shortcoming is that AI has no understanding of the cause and effect of its decision. It lacks common sense, emotion, irony, a sense of humor, imagination, the things that make us human. There is no free will and biases can be built in.  they can be gamed and outsmarted and are not that sophisticated.  The ethical dilemma is whether human decision-making should be handed over to a technology that lacks so many human characteristics.

Given society’s fascination with (some might say addiction to) AI, it is fairly certain that the technology will not go away any time soon.  Only the future will tell what the outcome will be of the ethical questions raised by the use of AI.

From:  AI: How Enlightenment Ends, Livewire, https://www.livewiremarkets.com/wires/ai-how-the-enlightenment-ends, May 16, 2019.

ethics

Ineffective Assistance Leads to Disciplinary Sanction

On October 2, 2018, the Supreme Court of Ohio suspended Cincinnati attorney Clyde Bennett, II’s license to practice law for one year.  The Board of Professional Conduct, the trial arm of the disciplinary system, recommended a one-year suspension with six months stayed.   The Ohio Supreme Court, however, enhanced the sanction, as is its prerogative under Ohio’s attorney disciplinary process.

Bennett missed the filing deadline for appealing his client’s conviction for attempted murder and felonious assault and 25-year prison sentence.  According to Bennett, he had decided that a direct appeal to the Supreme Court of Ohio and a federal habeas petition was a better course of action than appealing to the 1st District Court of Appeals.  However, he did not inform his client of that decision when the two men met after the Court of Appeals deadline had expired.

The Supreme Court stated that Bennett did not have a sufficient understanding that habeas proceedings first required the exhaustion of all state remedies.  He also failed to inform his client’s mother that he required the entirety of the $5,000 flat fee before he would start work on the case.  Nor did he reduce the fee agreement to writing.  The client’s mother paid Bennett $2,500, which Bennett deemed earned upon receipt and deposited into his general business account.  After receiving another $1,000, Bennett began work on the case by filing a Notice of Appearance and filing a one-page motion for delayed appeal with the Supreme Court of Ohio.  Bennett represented to the Supreme Court that the reason for the delay was that he was not retained until several days after the expiration of the 45-day time period for filing the appeal.

The Supreme Court deemed Bennett’s Affidavit in Support of Jurisdiction misleading in that it omitted relevant information.  It called the omissions significant.  It said it was designed to mislead a subsequent court considering a habeas petition that a good faith effort had been made to avail the client of his state law remedies.  The Supreme Court denied Bennett’s motion for delayed appeal.

Bennett’s client hired another attorney who filed a motion for delayed appeal with the Supreme Court of Ohio on the basis of Bennett’s ineffective assistance of legal counsel. The Supreme Court denied that motion.  The U.S. District Court for the S.D. of Ohio, Western Division, later determined that Bennett’s ineffective assistance excused the client’s failure timely to file the first appeal but denied the habeas petition, nevertheless.

The Supreme Court of Ohio found that Bennett’s conduct failed to give competent representation to his client, failed reasonably to keep his client informed of the status of the matter, violated fees rules of ethics by receiving an “earned upon receipt” retainer without a provision for refunding fees if the representation was not completed and making misrepresentations to the Supreme Court of Ohio.

In issuing sanctions, the Supreme Court noted that the purpose of attorney disciplinary proceedings was to protect the public, not to punish the offender.  However, it also noted its propensity to enhance a sanction where the attorney has previously committed violations of a similar nature.  It noted that Bennett had previously been indefinitely suspended for engaging in dishonest conduct that also resulted in a felony conviction and a two-year prison sentence.  Because the current misconduct also involved misrepresentation, the Supreme Court enhanced Bennett’s sanction and suspended his license to practice law for one year rather than the suggested one year with six months stayed.

Disciplinary Counsel v. Bennett, 2018-Ohio-3973.