Tuvell v. Marshall

Tuvell v. MarshallStoryRecordDiscussion

► At first glance, this Case Study may seem strangely out-of-place here, dealing as it does with a (State) Tort (Defamation, “CyberLibel”), rather than (Federal) Judicial Misconduct (largely Criminal, see Tuvell v. IBM). But the singular circumstances of the case make it very suitable for our study — as an object-lesson in the closed-mindedness of (some sectors of) the American public to the taboo subject of Judicial Misconduct.

Namely, this case illustrates how difficult it is for victims of Judicial Misconduct to make their voices heard — not just in specialized courtroom settings, but in the generalized public/Internet forum of ideas/conversation/dialectic. For in this case, the Plaintiff was inexplicably/unmercifully pilloried/excoriated for merely attempting to appropriately raise a discussion of Judicial Misconduct, on a (self-professedly) well-known (self-professed) open-minded/open-opinion blogsite, hosted by a (self-professed) lawyer and (self-professed) professional legal ethicist(!). “With ‘friends’ like those, who needs ‘enemies’?”

Besides that object-lesson, this case additionally presents a rather extreme legal novelty: its resolution requires (in part) the State defendant/judge/jury to consider/examine/inspect a Federal case (Tuvell v. IBM), and determine whether or not the judge there (Casper) committed Federal offenses there (Judicial Misconduct, crimes such as Falsification of Facts and Obstruction of Justice, etc.)! ◄

Jack Marshall
Jack A. Marshall

Beginning

The Defendant in this case, Jack Marshall, is a lawyer and (self-professed) professional ethicist (with special expertise in legal ethics) of long standing in Alexandria, Virginia, founder and president of a nationwide company, ProEthics Ltd. , which specializes in ethics education/training/consulting. On the side (though quite prolifically) he also runs a “blog/forum/commentary-site” (see How to Use Forums for definitions), EthicsAlarms, which (self-)professes to be “the per-eminent [sic] and most visited ethics commentary blog on the web” .

The Plaintiff, Walter Tuvell, first learned of the EthicsAlarms blogsite on Aug 2 2017, when he tripped upon it while doing some Internet research (Google search unrelated to Judicial Misconduct). Immediately attracted by the prospect of raising a serious discussion of Judicial Misconduct (closely related to judicial/legal ethics) on the seemingly serious site, Plaintiff visited EthicsAlarms to read some of its blog posts and follow-up comments. But he was initially taken aback to observe the site seemed to be primarily concerned with partisan politics, wrapped in a thin veneer/sheen of ethics-like/lite language — as opposed to serious whole-life ethics (legal-oriented or not), per se, as advertised on the site’s About page . And not only that, but as a secondary observation, Plaintiff noticed that EthicsAlarms seemed to be mostly “right-leaning” (that is, anti-left/towards-right, as indeed Marshall himself observed shortly afterward, on Sep 19 , where Still Spartan writes “I haven’t been writing here a lot lately, and I have noticed that a lot or other liberal-leaning commenters have dropped as well,” and Marshall responds “I have many theories about the progressive exodus [followed by incoherent ramble]”). And so, uncertain that raising a non-partisan/political topic (such as Judicial Misconduct) would be welcome on the site, Plaintiff postponed doing so, opting instead to settle into a routine of “following” (checking-in with, i.e., scanning/reading to get the gist of) EthicsAlarms for a few weeks, to gauge whether the political/partisan content he’d stumbled into was a permanent feature, or was a temporary aberrational deviation from the About page’s proclaimed “pure” design/intent (which hinted nothing whatever about partisanship, politics, right-wing conservatism, etc., much less being a “satirical” site).

Middle

After several weeks of monitoring EthicsAlarms, but seeing no let-up in its markedly political/partisan orientation (often devolving to invective/rants/name-calling, with an unmistakable right-leaning slant by Marshall and most of his commenters (except for a very few contrarian commenters)), Plaintiff wrote to Defendant, privately, politely inquiring as to the accuracy of his observations (disparity between the “high-minded” intellectual/honest desgn-intent of the About page, vs. the “low-minded” blog/comment dishonest mudfight contents of the actual implementation) — without judgmentality however: that is, without criticizing/complaining/accusing/condemning/reprimanding/taking-to-task the blogsite for its focus on politics/partisanship, or for “taking sides” (one way or the other, left vs. right). (If the latter, then Plaintiff planned to simply move on, and not participate with the site.)

And that’s when all hell broke loose — over the remarkably brief period of a mere 5 days (Sat Aug 26 – Wed Aug 30) — giving rise to the Defamation case here documented. The triggering event appears to be — not Plaintiff’s private inquiry to Marshall per se — but rather Marshall’s incorrect/false characterization (apparently scurrilously so, pandering to his anti-leftish-leaning audience’s tastes/fantisies) of Plaintiff as a (baselessly-presumed-to-be-leftish-leaning) “academic” (for Marshall’s views of “academics” generally, see Marshall, Anti-Academics ).

Most (“~99%”) of the story that unfolded can be found on the EthicsAlarms blog page for Aug 27 itself (just the subset about “Morning Ethics Warm-Up,” which is the first blog item of that day, with its comments, not the whole day’s blog/commentary), which was devoted to the ensuing skirmish. The whole (“~100%”) story (it’s a short one) — modulo ongoing litigation materials (motions, memos, orders, discovery, depositions, interrogatories, etc.), which will have to be developed over time — is given in the following section(s) here, where full details are discussed (in the Complaint, and the Exhibits referenced there).

End (So Far …)

Superior Court

Plaintiff filed Civil Action (tort) in Massachusetts Superior Court against Defendant on Sep 13 2017, alleging one count of defamation (“cyberlibel”). The case was assigned to Judge Barry-Smith .

Judge Christopher Barry-Smith
Judge Christopher K. Barry-Smith

Appeals Court

The Judge’s decision was absurd, of course, and his opinion was a joke. Hence, this appeal:

Judge Amy L. Blake
Judge Amy L. Blake
Judge James R. Lemire
Judge James R. Lemire
Judge Kathyrn E. Hand
Judge Kathyrn E. Hand

So: This is the end of this case. It proves that the U.S. States judges/courts (some of them, and probably all) are just as corrupt/unaccountable, institutionally, as the Federal judges/courts.

Addendum: Exhibits

By the general (“notice” or “plausibility,” see Introduction) “pleading” rules (Massachusetts Rules of Civil Procedure (MRCP) ) (see also Massachusetts Superior Court Rules (MSCR) , and Massachusetts Rules of Appellate Procedure (MRAP) ), the Complaint (supra) only “tells the bare story,” in a short/simple/plain/concise/direct manner. However, in so-called “special matters” cases, such as defamation (and certain others, such as fraud), more definite pleading statements, with greater specificity/“particularity,” are required. But in any event, the Complaint is not required/permitted, by rule, to proffer actual “evidence” (nor, for that matter, any technical discussion of the law). Those (evidence, legal arguments, …) are reserved for later stages of the litigation (motion to dismiss, summary judgment, briefs, trial, …).

Thus, for the purposes of this Case Study, we provide the relevant evidence here in this Addendum (not in the Complaint itself), in the form of the following list of exhibits (notation: the “Comp ¶” citations in this section refer to the numbered/tagged paragraphs of the Complaint). Note that, due to the extremely time-compressed duration of activity in this case (only 5 days), all the interactions ever conducted between Plaintiff and Defendant (apart from the Tuvell v. Marshall suit itself, of course, discussed herein) are represented (except for the sole missing exception reported in Comp ¶14·B).

This means: the complete story of Tuvell v. Marshall is given here (the formal/official Complaint-related items supra, together with the following list of evidentiary exhibits). That is: what’s provided on this website/webpage is the whole set of claims/evidence (at least, absent discovery/deposition-stage materials, which doesn’t yet exist at the time of this writing). So you can be the judge/jury!

Evidence

Hearsay

In addition to the above “admissible evidence,” one can also find a certain amount of “inadmissible hearsay” concerning Jack Marshall on the Web. A few examples are instructive:α

α・ Disclaimer: ⁠We do not here, in any sense, vouch for the “correctness/credibility/viability” (however defined) of any of this hearsay (insofar as we can discern, it’s all just “opinion,” not assertions of “fact”). Rather, we are merely performing a bookkeeping/archival service of pointing to (as opposed to “repeating”), and preserving for posterity (since the Internet is so dynamic/changeable), “the kind of writings/opinions of ‘third-party others’ that ‘can be found on the Internet’.” Unfortunately, I didn’t know about any of this gossip until it was “too late” (sigh). {†・ After all, “The Internet Is Forever.”}

Comparative Case: Unsworth v. Musk

While this case (Tuvell v. Marshall) was in progress, another (more high-profile) defamation case was brewing: Vernon Unsworth v. Elon Musk (the so-called “pedo guy” case). While we do not want to digress very much on that case, it is well worth pointing out that the (Federal District) Judge in that case (Stephen Wilson, Central District of California) played the game correctly: he rejected Musk’s Motion to Dismiss, exactly as he should have done. What’s most interesting from our point of view is the role played by the case of Milkovich v. Lorain (mentioned supra). Musk’s attorneys improperly tried playing-down Milkovich (though to their credit they at least mentioned it), while Unsworth’s attorneys properly played-up Milkovich — exactly as we have done in our appellate documents filed in Tuvell v. Marshall (though, our Milkovich arguments are even more detailed/instructive):