Month: January 2019

The Trump Presidency And “The Caine Mutiny”—A Reminder

/ Jack Marshall / 11 Comments

Turner Movie Classics ran “The Caine Mutiny” again last night. It reminded me of what I wrote two years ago, when I really didn’t think that the “resistance” and the Democrats would continue on the destructive path they have for this long. I even wrote, foolishly, “This is the last time I’m going to try to explain why the fair, patriotic, ethical and rational approach to the impending Presidency of Donald Trump is to be supportive of the office and the individual until his actual performance in the job earns just criticism. Attempting to undermine a Presidency at its outset is a self-destructive act, for nobody benefits if a Presidency fails.” Of course, it was far from the last time I returned to the topic. In my defense, how could I know, at a point where the term “the resistance” hadn’t even surfaced yet, that the unparalleled assault on a President would not only continue, but escalate to the point where a newly minted Congresswoman would announce to a cheering mob, “We’re going to impeach the motherfucker!”?

Watching the movie, however, was striking. I know it well; I can recite many of the dialogues from memory. Yet the parallel with the Trump Presidency struck me stronger than ever before, and sent me back to that previous post, in which I wrote,

In The Caine Mutiny, a film version of the stage drama and novel “The Caine Mutiny Court Martial,” Captain Queeg (Humphrey Bogart), a man whose war-shattered nerves and self-esteem problems have rendered him an erratic and an unpopular officer, falters in his command during a storm. His officers, frightened and already convinced that their captain is unfit for command, mutiny. At their military trial, their defense attorney causes Queeg to have a breakdown on the witness stand, winning the case for the accused mutineers. Later, however, at the post trial victory party, the lawyer, Barney Greenwald (Jose Ferrer),  shames his clients. He represented them zealously, but he tells them that they were, in fact, at fault for what occurred on the Caine:

Ensign  Keith: Queeg endangered the lives of the men.

Greenwald: He didn’t endanger any lives.You did. A fine bunch of officers.

Lt. Paynter: You said yourself he cracked.

Greenwald: I’m glad you brought that up, Mr. Paynter, because that’s a very pretty point. I left out one detail in court. It wouldn’t have helped our case. Tell me, Steve, after the yellow-stain business, Queeg came to you for help, and you turned him down, didn’t you.

Lt. Maryk: Yes, we did.

Greenwald: You didn’t approve of his conduct as an officer. He wasn’t worthy of your loyalty. So you turned on him. You ragged on him, you made up songs about him. If you’d given Queeg the loyalty he needed, do you think all this would have come up in the typhoon? You’re an honest man, Steve, I’m asking you. You think it would have been necessary to take over?

 Maryk: It probably wouldn’t have been necessary.

Keith:  If that’s true, we were guilty.

Greenwald: Ahhh, You’re learning, Willie!  You don’t work with the captain because of how he parts his hair…you work with him because  he’s got the job, or you’re no good.

Exactly.

      Or you’re no good.

Donald Trump is in over his head. He knows it, I think. Maybe, just maybe, with a lot of help, a lot of support and more than a lot of luck, he might be able to do a decent job for his country and the public. It’s a long-shot, but what’s the alternative? Making sure that he fails? Making him feel paranoid, and angry, and feeding his worst inclinations so he’s guaranteed to behave irrationally and irresponsibly? How is that in anyone’s best interest? That’s not how to get someone through a challenge, especially someone who you have to depend on.

Continue reading →

Ethics Quiz: The Improper Jury Instruction

/ Jack Marshall / 27 Comments

At least a dozen Pennsylvania murder convictions may be reversed because Judge Renee Cardwell Hughes included this description of reasonable doubt to instruct her juries:

“Each one of you has someone in your life who’s absolutely precious to you. If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion. You may even ask for a third opinion. You’re probably going to research the condition, research the protocol. What’s the surgery about? How does it work? You’re going to do everything you can to get as much information as you can. You’re going to call everybody you know in medicine: What do you know? What have you heard? Tell me where to go. But at some point the question will be called. If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.”

U.S. District Judge Gerald McHugh ordered a new trial for a man convicted following this instruction, and Hughes may have used it in 50 cases.

This is why I am making this an ethics quiz: I have no idea why the instruction is wrong, or confusing. I’ve read McHugh’s opinion, and I still don’t understand what the alleged problem is, unless this judge just doesn’t want to anyone convicted. (He’s an Obama appointment, but I’m sure that has nothing to do with anything, for Chief Justice Roberts tells us so). The decision is here, and this the judge’s reasoning: Continue reading →

Now THIS Is A Frivolous Lawsuit!

/ Jack Marshall / 11 Comments

Sounds noble in theory, but it doesn’t always work when the one saying “no” is a judge.

Lawyers and the public mean different things when they call a lawsuit “frivolous.” The public and the news media mean that the suit is silly, desperate, based on a crazy theory or unlikely to succeed. Lawyers, however, know that suits that seem  silly, desperate, based on a crazy theory or unlikely to succeed sometimes win. Sometimes, they even change the law for the better. ABA Rule 3.1 explains,

Rule 3.1: Meritorious Claims & Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law….

Comment:The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

The guy currently  suing me for defamation, for example, hasn’t quite crossed the “frivolous” line, though he is arguing that what is clearly opinion is an assertion of fact, contrary to all existing jurisprudence. His appeal, however, while batty, does make an argument that I assume in in good faith, that a Supreme Court case supports his definition of libel. It doesn’t, but he has the right to make an argument in the hope that some judge or appellate panel will agree. Of course, he is also not a lawyer, so he can’t be held responsible for violating legal ethics.

This guy can be, however: Continue reading →

On Greed, Stupidity, And Reality: My Baseball Wish

/ Jack Marshall / 20 Comments

There is now rampant speculation that the twin prime-age free agents who have the so-called Hot Stove League in palpitations—the two are outfielder Bryce Harper (L) and shortstop Manny Machado (R), both 26, burgeoning superstars, and, in the estimation of many including me, assholes—will not sign contracts until February. I find this difficult to believe, since it would be jaw-droppingly stupid (and unethical), but I hope hope hope that it happens, because the ethics lessons the consequences might teach couldl be momentous.

Both young men are reportedly seeking contracts in the range of ten years at 30+ million dollars a year. Both have player agents who are telling them such exorbitant goals are reasonable.  Machado has already made about 34 million dollars in his still-brief Major League career.  Harper had made almost 48 million. Both are in a position in which they could pick out the city and team they want to live in and play with, and say to their agents, “This is where I want to be. Make the best deal you can, and make it happen.” That is what a rational person would do, and indeed, that is what some players, not players with the potential earning power of these two but ones with more brains than Harper and Machado have between them, have done, though rarely.

It is important to note that unless these guys have developed an addiction to eating diamonds or something similarly extravagant, they don’t need to work another day in their lives now. What is their motivation to be paid more than a third of a billion dollars over the next decade, other than having avaricious, unethical agents steering them in that direction? Ego? Insanity? Stupidity? Harper or Machado could call up any one of the 30 MLB teams, ask, “What can you pay me for the next five years?” and have a contract for at least $100,000,000 dollars within 25 hours. How much different will their lives be with those “low-ball” contracts than if they received the longer, richer ones they covet? Not different at all, and quite possibly better. Continue reading →

Morning Ethics Warm-Up, 1/4/18: The Good And The Bad, And If Janus Had A Third Face, It Would be Ugly

/ Jack Marshall / 44 Comments

Good morning!

1. Looking for biased but reliable progressive news aggregators! I have a long secret list of story sources, but my online leftist news aggregator supply is drying up. That’s where I can find the stories that reflect badly on the Right but that the conservative news sources choose to ignore. The key problem is “reliable.” Sites like Raw Story, ThinkProgress, the Huffington Post and the Daily Kos have all violated Ethics Alarms standards of basic honesty, fairness and trustworthiness—much like Breitbart, Red State and the Gateway Pundit, none of which I will  read or cite unless directed to a particular post, from the other side of the spectrum. The Daily Beast was long my favorite online leftist source, but now it requires a subscription, and I’m certainly not going to pay for biased analysis—beyond what I already get from the Washington Post and New York Times.

Memeorandum remains the most balanced and non-partisan online news aggregator, by far.

2. Retire, Pat. It isn’t just Democrats like Nancy Pelosi and Diane Feinstein who try to hold on to power long after their advancing age makes it unethical to do so. The GOP has its irresponsible geezers too. Today Sen. Pat Roberts (R-Ks) will announce whether he plans to end his political career or run for another term in 2020, which would take him to his 90th year if he survived it. The man is 82: he should not have run for his current term.

Of course, it doesn’t help that 85-year-old Justice Ruth Bader Ginsberg is providing an unethical role model for all elected officials and judges by ostentatiously refusing to retire and obviously resolving to leave the Supreme Court feet first.

3. Slapping down Big Brother in Oregon.U.S. Magistrate Judge Stacie F. Beckerman issued a permanent injunction against the Oregon Board of Examiners for Engineering and Land Surveying that tried to fine Mats Järlström, who has a degree in engineering and years of experience in the field, $500 for describing himself as “an engineer.”

The judge ruled that this was a violation of the First Amendment, which it clearly was. This wasn’t a case where the First Amendment right to lie came into play, because Järlström wasn’t lying. He was fined for going on television to talk about public policy issues while describing himself as an “electronics engineer” and writing the phrase “I am an engineer” in a letter. The Oregon State Board of Examiners for Engineering and Land Surveying claimed he was practicing engineering without a license.

As government regulations proliferate without end,  they inevitably strangle individual liberty, expression and enterprise. Continue reading →

Welcome The 2019’s First New Rationalizations: 1C. It Happens To Everybody, And 19 B. Murkowski’s Lament

/ Jack Marshall / 6 Comments

These have been on the drawing board waiting for induction into the Ethics Alarms list of Unethical Rationalizations and Misconceptions far too long.  It’s also a good time to re-read the list, which was recently brought up to date. I wrote the damn thing, and it it still reminded me of some things.

Rationalization 1C. It Happens To Everybody, or “You’re not alone!’

This is yet another variation on the Golden Rationalization, “Everybody Does It,” but the transitive version. The theory is the same, that somehow the ethical nature of an act is changed by its frequency, or, in the case of #1C, how many victims the unethical conduct has claimed. This one is so frequently employed that it doesn’t register as a rationalization, perhaps because the one who wield’s it is often a third party. “Don’t feel too bad,” the nice person patting your head says, “You’re not the only one.” The swift answer to this should be, “So what?” Should I feel less raped because others have been raped? Should I feel less lied to because others have been deceived? Should I feel richer because others have been robbed?” Even if it is offered in kindness, this is a rationalization that aides the wrongdoer. Arguing that as long as the misery inflicted has company, what was done isn’t as bad as it was.

Rationalization 9 B. Murkowski’s Lament, or “It was a difficult decision”

Continue reading →

Morning Ethics Warm-Up, 1/3/19: Morons, And More.

/ Jack Marshall / 66 Comments

Good morning!

Still working on the appellee brief in my defense against the frivolous law suit by an angry banned Ethics Alarms commenter whose boo-boo I bruised. How do you write a professional, respectful, effective rebuttal of a 70 page brief that is basically nonsense? I know how to argue against a real good faith legal assertion–indeed, my enjoyment of brief-writing nearly got me stuck in the traditional practice of law. But “this is deranged crap that doesn’t constitute a valid appeal and that wastes the time of everyone involved” isn’t a professional response, just a fair one.

1. “You know…morons!” At least two people—I can’t find the link for the second one, but it was a child—were wounded when spent bullets shot into the air by New Year’s Eve celebrants fell back to earth and hit them. This happens every year. Why do people think shooting guns into the sky is safe? In WW II, my father had to promise a court martial for any soldier under his command who shot a weapon into the air.  This is basic Law of Gravity stuff, but it seems to elude an amazing number of gum owners. I’m only aware of one move that ever featured a death from a falling bullet: “The Mexican,” a failed 2001 Brad Pitt-Julia Roberts comedy.

2. “You know…morons!” (cont.) The Netflix horror hit “The Bird Box,” which involves a blindfolded Sandra Bullock leading her similarly burdened children on an odyssey to escape an apocalyptic threat that only strikes when it is seen, has spawned a web challenge in which people are encouraged to try doing everyday tasks wearing blindfolds. This prompted a warning from Netflix:

“Can’t believe I have to say this, but: PLEASE DO NOT HURT YOURSELVES WITH THIS BIRD BOX CHALLENGE. We don’t know how this started, and we appreciate the love, but Boy and Girl have just one wish for 2019 and it is that you not end up in the hospital due to memes.”

Boy and Girl are what Bullock’s character’s children are called, because she is so certain they are doomed that she doesn’t want to name them. I am tempted to say that anyone so stupid as to try this challenge should not be discouraged, because their demise will only benefit the rest of us. But that would be mean.

True, but mean.

3. Follow-Up…The Federalist has more on the unfolding Steele Dossier scandal. I do not see how any result of the Mueller investigation can hold up in court, no matter how much the mainstream news media spins it, with the degree of procedural irregularity and prosecutor misconduct we already know is behind it. Presumably this is why the focus has shifted to the extremely dubious theory that Trump violated election laws by paying off a sex partner, something he would have probably done whether he was running for office or not, and also a transaction that didn’t involve campaign funds. The media keeps reporting the latter as if it is an unquestioned crime (apparently because Michael Cohen was induced to plead guilty to it), but it just isn’t a crime, and I believe in the end that theory will be thrown out of court too. Continue reading →

Religious Bigotry Ethics: Kamala Harris’s Attack On The Knights Of Columbus

/ Jack Marshall / 35 Comments

Sounds like monsters to me!

Here is another embarrassing story the mainstream media is shrugging off, presumably because it exposes one more ugly side of the preferred (by many in the media) candidate for the 2020 Democratic Presidential nomination, California Senator Kamala Harris. In truth, journalists do Democrats no favors when they cover for them like this: it makes the Democrats being shielded careless, it makes them reckless, it makes them stupid and unable to disguise their extremism and  ruthlessness.

Yes, it makes them into Hillary Clinton.

In recent judicial nominee hearings, Harris teamed up with Sen. Mazie Hirono–she’s the Certified Silly Person who said that Democrats have a hard time connecting with voters because Democrats are too “smart” and “know so much,” you know, like Mazie—but she couldn’t be elected dog-catcher outside of Hawaii, so I’m not going to bother using this episode to further prove what is already proven beyond a reasonable doubt. Yes, she is an idiot. Harris, however, is supposed to be brilliant, plus she’s a lawyer, she’s black, and she’s woke.

Before Christmas, Harris, along with Hirono, attacked judicial nominee Brian Buesche for belonging to the Knights of Columbus, the venerable Catholic social and charitable organization founded in 1882. Senator Harris  demanded that Bunche, seeking confirmation for  a U.S. district court judgeship, end his membership in that organization and recuse himself from cases in which it has taken a position. In other words, being Catholic disqualifies individuals for federal judgeships. Strange, I thought we put this bigotry to bed when Jack Kennedy made a campaign speech promising that he wouldn’t take orders from the Pope.

The Knights, say the two Senators (but let’s concentrate on the Woman Who Would Be President, Harris), assert that the Knights have taken “extreme positions,” meaning that they follow the Catholic Church’s doctrinal opposition to abortion and gay marriage. I don’t see how anyone can interpret the Senators’ position as anything but anti-religion bigotry.  Writes Ramesh Ponnuru,

Support for the traditional definition of marriage is not an extreme position; it is held by roughly a third of all Americans. It was certainly not an “extreme position” at the time of Proposition 8: The initiative won 52 percent of the vote in one of the most liberal states in the country, the same day that state voted overwhelmingly to make Barack Obama president…If Harris and Hirono want to maintain that all judicial nominees must support abortion, beyond just saying that they will respect existing law, then they should just say that there are scores of millions of Christians they would never allow on the federal bench on account of their beliefs.

In 2017, Senator Diane Feinstein hinted of rising Democratic anti-religious hostility, or perhaps more transparent hostility, when she seemed to look askance at Judge Amy Coney Barrett membership in the Catholic Church, observing darkly, “the dogma lives loudly within you, and that’s a concern.” Continue reading →

“Immoral And Ineffective”

/ Jack Marshall / 31 Comments

Hmmm. I have now, in a single day, heard two Congressional Democrats, in the course of discussing the so-called government shut down, describe the Trump border wall as “immoral and ineffective.” Does this mean that the phrase is an official, focus group tested Democratic talking point now, issued to the troops to be relentlessly repeated over and over again to end debates rather than illuminate them? I assume so, and thus it joins “comprehensive immigration reform,” “sensible gun laws,” and others. If I am right, it is a remarkably dishonest catch phrase. It’s also internally hypocritical.

Simply put, if the wall is ineffective, why is it immoral? And if the wall is immoral, why is being ineffective an indictment of it?

Arguing in the alternative like this is a red flag that signals that the advocate just wants to defeat the proposition, and doesn’t care how he or she does it.  The device originated in the legal profession, as a strategy to advance several competing and often mutually exclusive arguments with the goal of showing that regardless of interpretation there is no viable conclusion other than the advocate’s. Most often, the trick is used in criminal law: My client didn’t know the victim, and if he did, he was too far away that night to kill him, and even if he was the last one to see the victim alive, the evidence against him is circumstantial. In criminal law, the approach is justifiable, for the accused must be convicted beyond a reasonable doubt, and any doubt will do. The criminal defense lawyer isn’t seeking justice, or the best result for the community, just the best result for his client, as his (or her) clients defines it. It’s a better device to use in court briefs to other lawyers and judges than to a jury, who are likely to think, “Wait, does this lawyer care what the truth is?” The answer to that question is, of course, “no,” as long as the end result serves the interests of the lawyer’s client. If the client is Jack the Ripper, and the lawyer  arguing in the alternative allows him to escape conviction to kill again, the lawyer did the job required by his or her profession. The consequences of freeing the client literally is not the lawyer’s concern: if it is, then he or she is in the wrong profession. Continue reading →

Morning Ethics Warm-Up, 1/2/2019: A Drunken City Council President, A Head-Exploding Political Charity, NBC’s Strange Welcome To The New Year, And Facebook Calls Reality “Hate Speech”

/ Jack Marshall / 18 Comments

Good Morning!

1. First candidate for “Incompetent Elected Official Of 2019”! The Troy New York City Council president got drunk and then went behind the wheel to chased another motorist at high speeds for nearly 30 miles last week . State police arrested Carmella R. Mantello, 53, after troopers received a call from a terrified driver who told dispatchers that some crazy person was tailgating him and driving erratically. When troopers  pulled Mantello over, she denied following the man and claimed he was following her—interesting, since  troopers stopped her when she was behind the complaining motorist. She also refused to take a breathalizer test.

Later, Mantello  issued this statement:

“I understand the severity of my actions and take full responsibility. I apologize to my family, friends and constituents and am deeply sorry that I let you down,” she said. “I expect more from myself. Finally, I would like to personally thank the New York State Troopers for their professionalism in this matter and the service they render every day to keep our communities safe.”

The best way for her to honor professionalism and keep communities safe is to resign immediately.

Oh—I assumed that Mantello was a Democrat, since the news story didn’t mention her party affiliation. Nope! She’s a Republican.

2. You ain’t seen nothin’ yet!—get a load of THIS! Also, KABOOM! My head just exploded. Some ethics stories don’t need any analysis; they are res ipsa loquitur. I generally don’t devote pots stories when the despicable conduct is so obvious, but this one needs to be widely disseminated. From the New York Post: Continue reading →