Noonish Ethics Battles, 7/1/2021: “Remember Gettysburg” Edition


July 1 marks the first day of the epic Battle of Gettysburg, which could fairly be celebrated as the beginning of the end for the Confederacy and slavery. Like so many pivotal moments in our history, this one came about by random chance, with Lee’s army and the newly installed Gen. Meade’s Army of the Potomac stumbling into each other in a Pennsylvania country town in 1863. For three days, a bloody and complicated battle engulfed the area, with so many ethics lessons in the process that I fear I won’t be able to cover all of them this week. [ Guest posts on the topic will be welcome!] I am hoping to visit the battlefield again this year—this week will be tough, unfortunately. I will definitely find time this week to watch Ted Turner’s excellent and even-handed film about the battle, highlighted for me by the performances of Jeff Daniels as Joshua Chamberlain, Tom Berrenger as Longstreet, and the late Richard Jordan as General Lewis Armistead, as well as the dramatization of Picket’s Charge, and the score by Randy Edelman.

1. Baseball sexual misconduct notes…A restraining order was taken out against Dodgers pitcher Trevor Bauer, last year’s National League Cy Young winner. Bauer is a sportswriter favorite for his outspoken social media presence and progressive politics, so this will be a blow to the sportswriting woke. The woman making the allegations had what started as a consensual relationship with the pitcher, but in a 67-page document, alleges that Bauer assaulted her on two different occasions, punching her in the face, vagina, and buttocks, sticking his fingers down her throat, and strangling her to the point where she lost consciousness twice, an experience she said she did not consent to. After the second choking episode, the woman awoke to find Bauer punching her in the head and face, inflicting serious injuries. She contacted police, and there is now an active investigation of Bauer by the Pasadena, California police department. If any of her account is true, Bauer faces serious discipline from baseball, which has been (finally) cracking down on domestic abuse by players in recent years.

Also yesterday, MLB suspended the former New York Mets general manager Jared Porter at least the end of the 2022 season.   Porter was fired from the Mets in January after an ESPN investigation revealed that he had harassed a female reporter in 2016 when he worked for the Cubs.

Craig Calcaterra, the lawyer sports pundit, supplied the facts here, and I am grateful for that. I would love to subscribe to his substack newsletter, but every issue I read includes Craig’s apparently incurable progressive bias where it doesn’t belong, and I’m just not paying for that. This time, for example, he cites the Bauer, Porter, and Bill Cosby stories to justify the proposition that “we believe [women] when they say what happened to them,” a stunning thing for a lawyer to say. How Kirsten Gillibrand of him! Later, as if this belongs in a baseball news letter, Craig cheers the death of Donald Rumsfeld as an architect of an “Illegal and immoral” war.

All war is immoral to some extent, but the Iraq War, while in hindsight a mistake, was not illegal except in left-wing talking points. Craig should know better, and maybe he does, but in any event, foreign policy and international law are not his areas of expertise. The degree to which wokism has rotted his brain also shows up in his inclusion of an insulting trigger warning before his account of the Bauer allegations: “Warning: the following contains allegations of sexual assault and violence that may be difficult to read.” Oh for heaven’s sake: “Finnegan’s Wake” is difficult to read. News is life: stop treating adults like children.

You can subscribe to Craig’s excellent baseball observations and juvenile political commentary here.

2. Bill Cosby really is despicable, but we knew that. After he was freed from jail, probably for good unless he rapes someone new, the one-time beacon of accountability for the black community declared that he was an innocent man. That takes guts, since almost 60 women have accused him of drugging and raping them, and only the statutes of limitations and his intimidating celebrity kept him out of jail before his now-overturned conviction.

In answer to the question of how in the world the trial court allowed Cosby to be convicted using testimony he gave in a deposition following assurances by the previous D.A. that it wouldn’t used against him in a criminal trial, commenter valkygrrl, who actually reads court opinions unlike 98% of journalists, added this to yesterday’s Cosby post:

“The answer is on pages 27-28: ‘As noted, the trial court denied the motion, finding that then-D.A. Castor never, in fact, reached an agreement with Cosby, or even promised Cosby that the Commonwealth would not prosecute him for assaulting Constand. T.C.O. at 62. Instead, the trial court considered the interaction between the former district attorney and Cosby to be an incomplete and unauthorized contemplation of transactional immunity. The trial court found no authority for the “proposition that a prosecutor may unilaterally confer transactional immunity through a declaration as the sovereign.” Id. Rather, the court noted, such immunity can be conferred only upon strict compliance with Pennsylvania’s immunity statute, which is codified at 42 Pa.C.S. § 5947.14 permission from a court is a prerequisite to any offer of transactional immunity. See id. § 5947(b) (“The Attorney General or a district attorney may request an immunity order from any judge of a designated court.”). Because D.A. Castor did not seek such permission, and instead acted of his own volition, the trial court concluded that any purported immunity offer was defective, and thus invalid. Consequently, according to the trial court, the “press release, signed or not, was legally insufficient to form the basis of an enforceable promise not to prosecute.” [lightly edited to remove the footnote] The trial court felt that the former prosecutor couldn’t grant immunity–verbally or with a press release. A judge had to agree.'”

It continues: ‘As further support for the view that no agreement was reached, nor any promise extended, the trial court noted that, in his initial statement to police, which was voluntarily provided and not under oath, Cosby did not invoke his Fifth Amendment rights. Instead, Cosby presented a narrative of a consensual sexual encounter with Constand, which he asserted again later in his depositions. “Thus,” the trial court explained, “there was nothing to indicate that [Cosby’s] cooperation would cease if a civil case were filed.” Id. at 65. Since Cosby previously had discussed the incident without invoking his right to remain silent, the court found no reason to believe that Cosby subsequently would do so in a civil case so as to necessitate the remedy that the former district attorney purported to provide in anticipation of that litigation. The trial court further held that, even if there was a purported grant of immunity, Cosby could not insist upon its enforcement based upon the contractual theory of promissory estoppel, because “any reliance on a press release as a grant of immunity was unreasonable.” Id. Specifically, the court noted that Cosby was represented at all times by a competent team of attorneys, but none of them “obtained [D.A.] Castor’s promise in writing or memorialized it in any way.” Id. at 65-66. The failure to demand written documentation was evidence that no promise not to prosecute was ever extended. For these reasons, the trial court found no legal basis to estop the Commonwealth from prosecuting Cosby.'”

3. Since we’re on the topic of court decisions…The Supreme Court, in a 6-3 decision along the ideological lines that have not been nearly as solid as everyone predicted, upheld an Arizona law prohibiting out-of-precinct voting, ballot harvesting and other loose election procedures, saying that they were “not enacted with a racially discriminatory purpose” and thus did not violate the Voting Rights Act of 1965. Read the whole opinion, including the dissent—you know valkygrrl will. Not for the first time, I found a progressive justice’s dissent on this court disingenuous, as if she knew the ‘team” was going to lose so decided to burnish her Democratic Party creds by making an argument she doesn’t really believe. This time it was Justice Kagan, whom I respect a great deal, but this dissent was beneath her. Most of it is just a paean to how great the 1965 law was, and takes the position, so popular now in the Age of The Great Stupid, that racial discrimination hasn’t abated at all in 60 years.

I don’t know how basic, logical protections of the integrity of elections became targets for accusations of racism, or why so many Americans are suckers for the argument. Kagan, disappointingly, even repeats the hoary canard that the Georgia election reform law bans voters standing in line from getting food and drink. The position of the Democratic Party has become that unless voting procedures allow their favored constituencies to register votes without exerting any effort or commitment whatsoever—I predict telepathic voting will be the next progressive cause—it’s systemic racism. [ Boston Globe headline: “Supreme Court upholds restrictive Arizona voting laws.” Calling reasonable controls that protect the integrity of elections “restrictive” is like calling laws against shoplifting restrictions on shopping. Nah, there’s no mainstream media bias.] The SCOTUS majority explains why that is nonsense.

4. Back to Cosby: The reactions to his release are disappointing and confusing. As I wrote, he had to be released, rapist that he was, because he was not convicted in a fair trial. Why is this hard? It shouldn’t be hard.

Bill’s “Cosby Show” co-star Phylica Rashad tweeted: “FINALLY!!!! A terrible wrong is being righted- a miscarriage of justice is corrected.” But what did she mean by that…that Cosby isn’t the sexual predator that 60 women said he was, or that the “miscarriage of justice” was in the manner in which he was convicted? Her enthusiastic phrasing makes me suspicious, but it’s a clever tweet: she can claim it means whatever is more convenient for her.

In response, Janet Hubert, the African-American actress who played “Aunt Viv” on “The Fresh Prince of Bel-Air,” tweeted,

“Phylicia what are you thinking!!! I don’t know you but to say this was terribly wrong. EVERYONE knew what he was doing back then. How could you NOT! Get your umbrella sista here comes the shit shower … I know 5 women who have not come forward. Enough Ya’ll we know better. Powerful men do wrong things, black or white.”

Well, we don’t know what Rashad is thinking. Maybe she’s just being loyal to someone who made her career even though she knows he’s sick or evil. Rashad is a dean of fine arts at Howard University, and the school felt it necessary to issue a statement disavowing Rashad’s tweet supporting Cosby. But was she supporting Cosby, of the Bill of Rights? Doesn’t Howard support due process and the Fifth Amendment? Haven’t many black citizens been unjustly jailed by unscrupulous prosecutors, like the one who tricked Cosby?

Then Jason Whitlock, the conservative black journalist who has distinguished himself in the battles over Black Lives matter and Critical Race Theory, wrote in part,

“I’m in the group of people who were relieved when I heard the announcement. I recognize that the sheer number of Cosby accusers speak loudly and clearly about his behavior. Cosby used his position of power and influence to prey on women…But, honestly, I have to admit I’m attracted to, appreciate, and value what Cosby represented for so many years — the importance of fatherhood and family. The emasculation and demonization of men have diminished the importance of fathers. This is especially true for black people. In-home fathers are scarce. Popular public figures who emphasize and promote nuclear family values are scarce….It’s not hard to understand why some of us foolishly hold on to our affinity for Bill Cosby. He’s the only popular icon who spoke fiercely on behalf of men and women who prioritize traditional family values.”

It’s not hard to understand when someone with affinity for a ruthless, serial rapist is an idiot or a misogynist, but such affection is inconceivable from someone like Whitlock. What is HE thinking? Cosby’s celebration of middle-class values in the black community don’t mitigate his conduct at all; indeed, his sexual predation undermined his message and his impact as a messenger. He was one of the most noxious hypocrites in American history.

3 thoughts on “Noonish Ethics Battles, 7/1/2021: “Remember Gettysburg” Edition

  1. Read the whole opinion, including the dissent—you know vakygrrl will

    valkygrrl did.

    You accidentally added my short summation into the quoted text above and then later failed to end your blockquote so it now includes your SCOTUS commentary. Both should be quick fixes/

  2. I’ve been thinking…the current Cosby scenario seems similar to that of Roman Polanski, with a judge not honoring a plea agreement. If Polanski hadn’t run, but appealed, would he have gotten the same result as Cosby? SHOULD he have gotten the same result as Cosby?

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