Afternoon Ethics Clean-up, 7/5/2021: July Fifth Weirdness And “Justice”

Celebrating July 5th as a federal holiday is affirmatively strange, because not much good happened on this date. Ted Williams died on July 5, 2002, for example. In 1852, Frederick Douglass picked this date to give his “What to the Slave Is the Fourth of July?” anti-America speech to the Ladies’ Anti-Slavery Society in Rochester, laying the groundwork for anti-America movements in the black community ever since. On this date in 1921, baseball began unraveling the worst scandal in U.S. professional sports, as it concluded that the 1919 World Series had been fixed by gamblers bribing the key players on the Chicago White Sox, aka “The Black Sox.” It was also the date, in 1865, that a military tribunal convicted David Herold, George Atzerodt, Lewis Payne, Mary Surratt, Michael O’Laughlin, Edward Spangler, Samuel Arnold and Dr. Samuel Mudd of “maliciously, unlawfully, and traitorously” conspiring with John Wilkes Booth and others to assassinate President Lincoln on April 14, 1865, and planning to kill General Grant, Vice President Johnson, and Secretary of State William Seward. It was one of the most unfair trials in U.S. history, despite the fact that all of the alleged conspirators were probably guilty. Herold, Atzerodt, Payne, and Surratt were executed [above].

In short, it’s not a good date for ethics.

So far…

1 Ethics Alarms has a new Ethics Villain to keep tabs on. David Cole, the ACLU Legal Director who made an ass of himself and attacked his organization’s own client by criticizing a SCOTUS decision that followed the ACLU’s position, was the main authority in a New York Times review of the Court’s just completed term. Here’s nice Cole quote: “The new court is definitely conservative, but that doesn’t mean it is necessarily hostile to civil liberties. It protected many liberties that conservatives favor, including religious liberty, property rights, free speech, the privacy of the home and the right of the wealthy to donate to charities anonymously.”

No partisan bias there! Wait, David, just what are the rights that the progressive justices protect?

2. Speaking of SCOTUS, Steve-O-in NJ asked for my opinion of this idiotic essay in The Week: “The case for ending judicial review.” It reminded me that I never finished the Ethics Alarms compendium of fake news categories, of which this is one: Fantasy Controversies. This kind of essay might as well be “The case for eliminating sex,” “The case for using flatulence to fly to the moon” or “The case for a cheese-based economy.” There is no way for Congress to stop the Court from overruling laws—Separation of Powers exemplified— it finds unconstitutional short of a Constitutional amendment, which is fantasy itself. At the end of the essay, the author concludes, ‘Well, maybe it’s not such a good idea after all.’

It is unethical to waste readers’ time.

3. But most readers are so ignorant of the law and the Constitution that publications like The Week can get away with publishing such garbage. Some comments sparked by Bill Cosby’s release from prison because he was unlawfully convicted are depressing reminders of the inadequacy of our civic education..

“We know he’s guilty, but as far as I’m concerned, as of today, the justices that have made this decision have just enabled a criminal to go without a consequence,” Heidi Thomas, who testified that Mr. Cosby raped her in 1984, told a Denver news channel. “What message is that sending to other victims? To other perpetrators? This is one case, but the precedent they have just set is devastating.”

The precedent it set has nothing to do with rape or Cosby, but with reaffirming that prosecutors cannot trick a suspect into waiving his rights against self-incrimination based on a promise of immunity and then have a new prosecutor renege on the deal.

Victoria Valentino, another of Mr. Cosby’s accusers, told ABC News that she was “deeply distressed” by what she said was “the injustice of the whole thing.” The injustice was that a man was sent to prison using evidence that could not be legally used against him. Punishing someone for a crime by using illicit means isn’t “justice.”

Do most Americans understand that even guilty people have rights?

4. Sentencing Ethics. Remember Allison Mack? On “Smallville”? That’s her, third from the left…

Well, somehow over the ten years since the popular TV show ended, she became involved with the cultlike group Nxivm,and used her celebrity and acting talents to recruited female “slaves” into a secret sorority, collected information used to coerce their compliance using extortion, and directed several of the women to have sex with the group’s leader, Keith Raniere. She and Raniere discussed ceremonies in which the so-called slaves would be branded with his initials while unclothed and tied down, in his words, “almost like a sacrifice.” Nice! It sounds more lively than “Smallville” ever was.

Mack pleaded guilty in 2019 to racketeering and racketeering conspiracy charges for taking part in all this, but because gave federal prosecutors what they called “substantial assistance” in building a case against others in the group, she was only sentenced to three years in prison rather than the 14-17 years sentencing guidelines called for.

Now that’s not “justice.” It would take a great deal to convince me that the light sentence wasn’t substantially driven by the facts that Mack is 1) female 2) attractive, and 3) a celebrity. It is this kind of “justice” that let Jeffrey Epstein loose on the world.

She’ll serve a year and a half, and then star on a reality show. Do you doubt it?

 

26 thoughts on “Afternoon Ethics Clean-up, 7/5/2021: July Fifth Weirdness And “Justice”

  1. I thought it was normal for prosecutors to negotiate lighter sentences for those that help bring down a criminal conspiracy. Do you think that is unethical? If so, what if prosecutors are unable to build an adequate case without the help of such informants?

  2. 4. This process seems to be de rigueur for many federal prosecutions, based on “gun and drug” cases my former agency often handed off to the feds due to stiffer sentences at the federal level. Grab the “low hanging fruit,” then convince them to plead guilty to “crime X” and “conspiracy to commit crime X” for an offer of a lower sentence recommendation based on their cooperation, rather than face at least a decade or two of prison time and fines in the tens of thousands of dollars upon conviction. Then they tell all they know and the dominoes begin to fall. Subsequent defendants are charged with everything but electricity and get max sentences, in most cases. (Rainere got 120 years, if memory serves.) Mack may have benefitted from being an attractive female celebrity, but I’m guessing she was also lucky enough to be “first to squawk” when the opportunity presented itself.
    I have seen several of those conspiracy charges based on some mighty thin connections between those so charged, but if the defendant pleads guilty there’s no need to prove it in court. It all seems to me to be a substitute for old fashioned “detective work,” good thorough investigations that build ironclad cases and solid prosecutions, without giving sweetheart deals to anyone. It’s often much quicker and easier just to get someone to talk. Conviction rates reign supreme in many prosecutors’ offices.
    Although I have never seriously contemplated a “life of crime,” one of my lawyer friends, a former detective turned defense attorney, told me that if I was ever arrested by federal agents, “Tell them nothing, not even your name,” but to call him first. I asked, “What if I’m innocent?” He said, “Especially if you’re innocent.”

      • Maybe, but it happens every day, unfortunately, and not just with attractive female celebrities. I can understand a plea bargain to salvage a weak case, but it used to really annoy me (to put it mildly) when my guys and I had put together a solid case and the prosecutors didn’t swing for the fences in court.
        In this case, it is also likely that the “victim card” was played and the prosecutors might have seen her as the defendant most likely to get sympathetic treatment from today’s unreliable and easily swayed juries. I figured out long ago that both God and prosecutors move in mysterious ways. My presumption is that she had a really good attorney.

        • Oh, I am sure of it. OJ had great attorneys too, but that doesn’t mean I have to applaud the fact the he got away with a double murder. (This is exactly why I got out of criminal law.)

          • I definitely don’t ever applaud justice being thwarted, but it is the reality of the adversarial system, and the structures within which it operates. You know, the down side of the “better that a hundred guilty men go free” ideal. I have wept along with crime victims too many times when justice eluded them. You never get used to it, but you either soldier on, or move on.

  3. Including Douglass’ “What to the Slave” speech on a list of “nothing good happened” makes no sense to me, nor does calling it anti-America.
    The speech is widely studied, and for good reasons. It is a compelling anti-slavery speech made by one of the men of the times best suited to making that argument and delivered at a time when the acceptance of slavery was being heavily debated.
    It’s a mystery to me how this speech can be considered anti-America. Is it anti-America to praise the insight and courage of the founders? Is it anti-America to note that independence is wrongly denied to some three million persons living in America? Is it anti-America to call upon Americans to live up to the values expressed in the Declaration of Independence and in the Preamble to the Constitution? Is it anti-America to state that, despite the obvious sin of slavery, “I do not despair of this country”?
    Reminding listeners that all men are created equal, that they have natural rights to life, liberty, the pursuit of happiness — these are essential pro-America values.

    • Whatever its intent and whatever its purpose, the speech has been used to justify a vilification of the US by black activists ever since. “The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought life and healing to you, has brought stripes and death to me. This Fourth [of] July is yours, not mine.” How do you interpret that as Pro-America? And he was wrong. The Declaration is what ultimately pushed to the end of slavery. It brought life and healing to all Americans, as Douglass later conceded.

      • The objective record strongly indicates that – whatever the intent and whatever its other effects – the American Declaration of Independence contributed to delaying the end of slavery in mainland North America by about a generation or so (and, of course, U.S. precedents were not very influential in the wider world when slavery did end there, though they had been during the Revolutionary Wars and soon were again in Latin America).

        • It certainly did not! Eliminating slavery was politically impossible when the revolution began: it was accept slavery for the time being, or not have a nation. Arguing that Britain’s ban on slavery would have banned the practice in a still colonial America may be true, but since the consequence would have been no U.S. at all, or an eventual regional division, or some other inferior result, it’s sophistry, don’t you think?

          • No, it’s not sophistry at all. It’s analysis – breaking down and abstracting out the particular point at issue here. Either remaining with Britain would have ended slavery in North America faster, or not, and the evidence does indeed point to the former.

            As to your other points… they are at best distractions from that point, and at worst false, and in either case they are begging the question you are raising, that it would have been an inferior result more broadly considered (which is not self evident). If we stipulate that the U.S. Declaration of Independence was accurate, then slavery would have been over-ridden; had local lobbying been able to effect a delay anyway, then clearly the declarations’ general charges would have been poorly founded. Yet this is unexamined when you merely assert an inferior result. Regardless, even if it would have been an inferior result, that would have nothing whatsoever to do with whether or not that declaration actually, in fact, worked to delay the end of slavery there. That there are other issues that concern some is true; but that is what I meant by mentioning that there were indeed other effects. It is no sophistry to point out that this effect was what it was, when this is the original point raised.

            • Sound nice; makes no sense. No anti-slavery movement in the colonies was going to convince the South to abandon a cultural linchpin, nor Northern interests from profiting from their needs. Once Great Britain demanded that the Colonies ban slavery, the Southern colonies would have resisted, leading to either a half-revolution, a divided America, a failed revolution or a successful one that extended slavery. The Declaration concerned principles and established them at the new nation’s center, and in so doing continued the momentum toward ending slavery in the U.S. Saying that an impossible, impractical and inferior national course—knuckling under to an abusive monarchy—would have had a salutary effect isn’t analysis, it’s science fiction.

              • Please remember, I have been trying to show you the historical facts that are being used in support of a particular narrative, and that bringing out and asserting a different narrative is no substitute for seeing where others are coming from. It really doesn’t matter, for this purpose, whether the rebels were right about an abusive monarchy or not! What counts for us today is whether or not there are people out there in this day and age who really believe that the U.S. Declaration of Independence hurt their forebears, and then – flowing from that issue – whether that belief is supported by facts or illusions. Just now, I am only getting at that one point: is that support true or fake? Telling us or them that the revolt was good and justified is a very different matter.

                You and other readers deserve a full and clear response that doesn’t – if you will pardon the term – trigger you. However, first I will leave time for calm reflection to return.

    • I believe Douglas had reevaluated much of his rhetoric and came to the conclusion that despite the injustice inflicted through slavery America was redeemable. The rest of Jack’s sentence says that it laid the groundwork for anti-American screeds today which do not reflect the sentiments of Douglas after that reevaluation. An analogy to that might be that using the initial statements regarding weapons of mass destruction to justify maintaining forces in Iraq when it becomes apparent that our Intel was faulty or fabricated.
      That is how I interpreted the statement that no good would come of it .

      • Yes, Douglas gets no credit for his later evaluation as long as the first (and more famous) speech is trotted out every 4th. i don’t blame Douglas for being against the Declaration before he was for it, but that doesn’t change the fact that his words have done nothing but harm for decades.

          • Why give idiots like this free publicity? If he’s not happy here, there are 192 other countries to choose from.

        • Against the Declaration? “The principles contained in that instrument are saving principles. Stand by those principles, be true to them on all occasions, in all places, against all foes, and at whatever cost.”

        • That they did harm is not his fault.

          Moral luck plays into this. He is not responsible for the views of idiots.

          I can fully acknowledge that slavery was contrary to the founding principles. That requires me to say two things: 1) it used to be worse; but 2) now it is better. People who use these words to denigrate America are delusional, as they are unable to recognize #2.

          But Douglass was living in Phase One, it was worse at the time. His goal was the abolition of slavery. Perhaps he figured he would never see it. He was right to be outraged; he was right to be bombastic; his words should be viewed as the conscience of America calling out hypocrisy. It is a task that can’t be carried out mildly.

          But, the ultimate lesson should be that the US made good on its word, eventually. And, it took the angry words of someone who could point out America’s failure.

          Anyone who uses this essay to condemn the US should read one chapter further in their history book. They are idiots and deserve to brr we ridiculed in no uncertain terms.

          Bear in mind: it has been many years since I read this speech.

          -Jut

          • I don’t disagree with anything you wrote, Jut. (I usually don’t.) And yes, Douglass speaking pre-Civil War as a former slave had every reason to say what he did. I didn’t blame Douglass in my mention of his speech; I just said that it has not had a beneficial effects going forward. And it isn’t as if his oratory changed anything when he gave the speech.

        • What people are forgetting is that there were many free blacks in the Unites States even in colonial times. Some of them owned slaves themselves. While I can see where others are coming from regarding Douglas’s speech with respect to it’s value in that day, I tend to agree with the point that it is being prostituted by race hustlers who want every person of African lineage to believe their ancestors were once slaves here. That is simply not true. In fact, Frederick Douglass’s first wife was a free black from Baltimore.

          It strikes me odd that Nigerians who have immigrated to the United States since 1970 have been able to achieve the American dream as did so many others before them yet so many native born Blacks are still mired in the belief that they are forced by society to be second class citizens. Here is the question of the day how did a black man who was born a slave in 1818 rise to a level of great intellectual superiority without the gifts of the modern world and the freedoms to access it. The answer is he wanted to learn and he worked to learn.

  4. Describing a legitimate wrong and pushing for a more perfect union is an effort to make the country better, not tear it down.

  5. I don’t know that it’s fair to describe Douglass’s speech as the foundation for anti-American sentiment in the African American community. He may have provided their grievances their best expression in words, but he didn’t create those grievances. I can blame modern race hustlers for inflaming anti-American sentiment among posh students attending expensive universities by pretending everything, including silence, is literal violence against them – but not a man who actually felt the whip on his skin. The fault there lies with the hand that holds the whip.

    • Not on point. The issue is whether or not the Declaration of Independence and America’s freedom for Britain was an advance for just whites, or the human race. The Declaration held no whip—it’s a set of ideals, and ideals established as a mission statement for the nation going forward. That mission statement guaranteed that slaver was doomed, because the practice was incompatible with the mission. Douglass’s rhetoric launched the “It isn’t my Independence Day!” trope, which was and is factually false, and now divisive.

  6. Douglass was also quick to predict the Radical Republicans’ post-Civil War efforts to exploit the votes of newly-freed Blacks to increase the party’s power, much as the modern Democrats now exploit the African American community. He spoke up repeatedly, both before, during and after the war, against the need for government to anything more to “help” the Black man. On one such occasion he said:
    “Everybody has asked the question. . .’What shall we do with the Negro?’ I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us.”
    On another:
    “Our answer is, do nothing with them; mind your business, and let them mind theirs. Your doing with them is their greatest misfortune. They have been undone by your doings, and all they now ask, and really have need of at your hands, is just to let them alone.”
    How differently things might have turned out had his advice been heeded (or even understood) by all involved! I have even recently heard of some leftist criticism of Douglass because he was half white!

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