Month: August 2021

The Ethics of Justice: Why Criminal Defense Lawyers Defend the Guilty

/ Jack Marshall / 17 Comments

oj-simpson-smiling-murder-trial

This essay is closely related to yesterday’s post about the elderly defense lawyer who revealed in a memoir shortly before his death that the client he successfully defended against kidnapping charges in his most celebrated case was guilty. One commenter opined that it is unethical for a lawyer to defend a client whom the lawyer knows is guilty, which immediately reminded me to republish my explanation of this core element of legal ethics and the criminal justice from 2005. The commenter’s position is surprisingly common, even among law students. I’d bet that a majority of the American public is confused about the issue. That is more than a little scary, but it explains why, for example, the public was so blase about Derek Chauvin being convicted of murder under conditions that made fair trial virtually impossible. What follows is very slightly edited from the original version, which can be found here.

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How can it be right for an attorney to defend in court an individual that he or she knows is guilty? The fact that so many Americans are perplexed by this after two centuries is an indictment of the legal profession, which has flunked its obligation to protect its role in protecting a crucial Constitutional right by making sure that it is understood by the pubic that right serves. About 20 years ago, then-Fox TV commentator Bill O’Reilly led a campaign to get California criminal lawyer Jeffrey Feldman disbarred because leaked plea bargaining sessions showed that he knew his client, child killer David Westerfield, was guilty of murder, even though Feldman was vigorously disputing his guilt in court. O’Reilly pronounced Feldman a liar. He was wrong, but his ignorance, in this matter at least, is excusable, but only because it so widespread.

To understand the criminal lawyer’s ethical responsibilities, begin with this: the Founders of the American republic believed that citizens in a fair and just society shouldn’t be imprisoned or punished just because the government decides they are guilty of something, whether it is murder, robbery, not paying taxes or, as with John Hancock and Samuel Adams, criticizing those in power. They wisely decided on a system that required the government to prove that an individual had committed a crime to the satisfaction of an unbiased jury. Not only that: they decided that a very high standard should be applied in determining legal guilt: “beyond a reasonable doubt,” or near certainty.

Why? Taking the cue from British legal scholar William Blackstone, who famously said that it was better to have ten criminals escape punishment than to have one innocent man imprisoned, uber-Founding Father Benjamin Franklin said that “… it is better one hundred guilty Persons should escape than that one innocent Person should suffer.” Achieving this ideal means keeping the government honest: no convictions based on false or planted evidence, unreliable or lying witnesses, or confessions extracted from the accused by torture, beatings, or other forms of duress… even if the accused is, in fact guilty. All of that is essential for the system to work, if to work means “being fair and just.” If we permit the government to cheat in order to imprison a guilty individual, we have no way to stop it from cheating to imprison an innocent one. Indeed, it will be impossible to tell the difference.

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WHAT? Snopes Has Had An Unethical Culture All These Years??

/ Jack Marshall / 7 Comments

What a surprise.

You know, I hate to resort to mockery, sarcasm and “I told you so” on an ethics blog, but sometimes nothing else will do. Snopes fooled me for a while: in 2010, I described the fact-checking site as doing “a superb job tracking down and clarifying web hoaxes, rumors and other misinformation.”As late as early 2016 I was relying on Scopes, and then it began to dawn on me that, like most factchecking sites (Factcheck.com is better than the rest), Snopes miraculously only saw false stories when they either impugned conservatives, or were non-political, like the three-breasted woman. 2016 saw Snopes joining the mainstream news media in shilling for Hillary Clinton and the Democrats, and the jig was up. After tracing many examples Snopes partisanship, I kissed the site off with this post, marking it as an Unethical Website Of The Month (July, 2016).

I wonder if I should contact all the furious commenters defending Snopes on that post and ask them their thoughts on today’s revelations.

A BuzzFeed News investigation found that David Mikkelson, the site’s co-founder and chief executive, authored and published dozens of articles plagiarized from other news outlets. His objective, we are told, was ” to scoop up web traffic.” Gee, you mean pandering to progressives and Democrats, doing regular hit-jobs on Republicans and issuing biased and dishonest “factchecks” with clickbait titles wasn’t enough? Fascinating.

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It’s Time For The Ethics Alarms Friday Open Forum…OK, OK, PAST Time!

/ Jack Marshall / 64 Comments

beating myself up

I completely forgot to open the metaphorical floor yesterday. How embarrassing.

Do make me stop beating myself up by making today’s ethics symposium one for the ages.

An Old Defense Lawyer Unburdens His Conscience In A Book, And It’s Unethical

/ Jack Marshall / 9 Comments

Pointing-Finger

A shocking story in the New York Times has the legal ethics world buzzing. I just added the issues to an ethics seminar I’m preparing for this month; I wrote a song parody about it, in fact. For some reason, a Times reporter finally found out about a self-published memoir by criminal defense lawyer Peter De Blasio that came out about a year ago. The book, “Let Justice Be Done,” reveals among its other tales of his legal career the truth of his most famous case, and one of his most successful. DeBlasio had convinced a jury to acquit his client, Dominic Byrne, of kidnapping in the sensational Samuel Bronfman Jr. abduction case in 1975, though the evidence pointing to his guilt was overwhelming.

What made DeBlasio’s defense strategy work was the testimony of the mastermind of the kidnapping plot, a spectacularly talented liar named Mel Patrick Lynch. He took the stand and claimed that the 21 year-old Seagrams heir had planned his own kidnapping, and that he, Lynch, was the young man’s gay lover. Lynch was unshakable under cross examination even though his elaborate story made no sense. Realizing that the jury was buying the tale, and that the prosecution was unprepared to discredit it, DeBlasio exploited the story to persuade the jurors that the dimwitted Byrne was innocent of kidnapping, though he would be convicted of extortion. In the end, both Byrne and Lynch served less than four years in prison.

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Friday The 13th Ethics, 8/13/2021: Curses And Aggravations

/ Jack Marshall / 29 Comments

jason

Lots of small and annoying stuff today….

1. I left “Bite me!” unsaid, but I admit, I thought it. Picking up a prescription at the pharmacy, a woman about my age wearing a big enough mask for three heads shielded her face with her hand as I passed her on the way to the counter. It really pissed me off, and after two steps, I wheeled around, raised my hands, wiggled my fingers, and wailed at her in my best Biblical leper imitation, “Unclean! Unclean!” Several customers laughed. I’m not putting up with that crap…

2. Related to this post and the one that spawned it: Broadway star Laura Osnes—never heard of her!—was fired from the cast of a one-night production of “Crazy For You” in the Hamptons. The theater required all staff and cast to be vaccinated, and Osnes refused. The two-time Tony nominee revealed that she hadn’t been vaccinated and won’t be, because she doesn’t trust the vaccine.

I’d fire her too.

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The Category Is “Jeopardy Ethics”! And The Question Is: “Who Is Mike Richards?”

/ Jack Marshall / 14 Comments

Mike Richards

If you need another bit of evidence about how social media wastes our time—and why would you?—consider the uproar over the search for a replacement for Alex Trebek. The original “Jeopardy!” host, Art Fleming, was popular too, and he hung around for 11 years. That was sufficiently long to be briefly legendary; the “Jeopardy!” announcer, Don Pardo, was familiar enough that Saturday Night Live! used him and his unique voice as a running joke for decades. But when Fleming retired, there was no controversy over his replacement, because, seriously, who cares who reads the questions and answers in a quiz show, unless they have a speech impediment or sexually harass the contestants, like Richard Dawson on “Family Feud”? But in the Age of The Great Stupid, everything is a big deal.

After months of celebrity tryouts, kind of like Presidential primary debates, “Jeopardy!” has finally chosen two replacements for the late Alex Trebek. The actress formerly known as “Blossom” and later as Sheldon’s girlfriend on “Big Bang Theory,” Mayim Bialik, will host the prime time version and its spinoffs. Can’t wait for those spin-offs! Bialik is legitimately smart and knowledgeable, and not just compared to other performers: she has a PhD in neuroscience from UCLA. She also, like most successful TV actors, projects a likable personality. And, of course, she’s a woman. I assumed a black host would be found, but Steve Harvey’s already taken.

The kerfuffle is over Trebek’s replacement for the main, daily syndicated edition, which has been around since 1984. The show’s current executive producer, Mike Richards got the job. Richards was not one of the more popular auditioners, but he had one thing the rest didn’t have: the power to choose who got hired. He thought, and thought, and chose…himself! This suggests that the process was rigged.

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Still Not Scared? How About THIS…?

/ Jack Marshall / 25 Comments

During a closed meeting on this week, Attorney General Merrick Garland met with 35 state supreme court chief justices to urge their cooperation on limiting evictions. Garland praised the Michigan Supreme Court for giving tenants more time to apply for rental assistance by directing courts to stay eviction proceedings for up to 45 days. The AG also saluted the Texas Supreme Court for helping tenants facing lawsuits by sending them notices with assistance options.

The 35 justices should not have accepted Garland’s invitation (or was it a command?) Those who did accept should have ostentatiously walked out as soon as his purpose became clear. To call the meeting inappropriate is itself inappropriate: this was a straight up violation of the separation of powers, and a breach of professional ethics for everyone involved. Garland works for the President: he’s part of the executive branch. He’s also a litigant or a potential one in the matter he was discussing. The is an ex parte communication, as he well knows.

For the White House’s agents to strong-arm, or attempt to, members of the judiciary to allow the President’s party to pursue an unconstitutional policy is one more step to undo the structure of American democracy. This is a pure IIPTDXTTNMIAFB (“Imagine if President Trump did X that the news media is accepting from Biden.”). Creeping autocracy! Democrats and their puppet media would scream. Defying democratic traditions and weakening institutions! Except, you see, Donald Trump never did anything like this, and if he did, I assume all those good Democrats and progressives among the justices would have used the opportunity to call for impeachment, and the Republican chief justices, having respect for the Constitution, would refuse to attend.

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Ethics Flashes, 8/12/2021: Women Are Different From Men, And Other Amazing Revelations!

/ Jack Marshall / 23 Comments

Light

1. Related to my comment yesterday (I expected to get flack, but it never arrived) about how female commenters on Ethics Alarms tend to raise objections to the occasional pitched battles and harsh argument styles here, while the male participants largely take it in stride: I just saw an old interview with famed film director John Huston, in which he said, “One of the best ways to become friends with a man is to fight him.”

I don’t think a woman’s ever said that…or thought it. To be fair, neither have I.

2. Speaking of things women don’t do: Taunting, mocking, gloating and generally being what used to known as a bad winner is obnoxious, mean, bad sportsmanship (or course), a Golden Rule violation and wrong. Fans think its entertaining, however, so the various pro sports leagues tend to permit such antics. Football has, as with most matters, encouraged the most unethical conduct of the sort, but now the NFL’s officials have decided that on-field taunting is “out of hand.”

The new NFL rule: You can be an asshole, just not too much of an asshole. The league told officials to strictly enforce taunting rules, with automatic ejections of players who get two taunting penalties in a game. The player may also be fined or suspended, or both, depending on the severity of his transgression.

The renewed effort to enforce taunting rules will target “baiting or taunting acts or words” and “abusive, threatening or insulting language or gestures” toward players, coaches and game officials, as defined by the N.F.L.’s unsportsmanlike conduct rules.

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Time Travel Ethics: The 1961 ABC TV Schedule

/ Jack Marshall / 25 Comments

I owe Ann Althouse for finding this; I never would have, especially since I’m disgusted with YouTube.

Above is a montage of all of the TV series offered to the public by ABC in the Fall of 1961. It’s worth noting that in 1961 the Fifties culture was still going strong, though JFK had replaced Ike as President. What we think of as the cultural Sixties didn’t really start until after Kennedy’s assassination in November of 1963. Also worth noting: ABC was the perennial least watched network on 1961. That meant they took the most risks, but ’61 was not a good year for ABC.

What can we learn from the montage? Culture is ethics and ethics is culture; this is a snapshot that shows what a large percentage of Americans watched at night, and what contributed to their worldview. It is fair to say, I think, that nothing in popular culture today influences an many people as even ABC’s prime time schedule did. The snap shot reveals where the nation has progressed, and what it has lost. In 60 years, there is a lot to consider.

Some Observations:

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Scared Yet? I Want To Hear A Legitimate Defense Of YouTube Censoring Senator Paul’s Speech…

/ Jack Marshall / 33 Comments
https://www.youtube.com/watch?v=XLPmLnDtfjE

Spoiler: There isn’t one.

Senator Rand Paul (R-KY), the U.S. Senate’s most passionate libertarian, was suspended from YouTube for expressing his strong opposition to Wuhan virus mandates and calling for widespread citizen resistance. This is res ipsa loquitur: Big Tech is using its corporate power to support government policies and prevent dissent. The argument that YouTube (that is, Google) is a private entity and not bound by the First Amendment is disingenuous, just as similar arguments defending Facebook, Twitter and other social media banning President Trump as well as posts that offer opinions and positions they don’t want the public to see. When corporations use their massive power and influence to suppress speech and control the flow of information, they pose an existential threat to democracy. When they exercise this power to advance the political agenda of a specific group, individual or party, that threat is worse. When they are censoring and distorting on behalf of the government, the threat is dire.

Paul released a rebuttal and condemnation of YouTube’s indefensible action, and it was also taken down by Our Video Masters. You can view it here, on Rumble. If I could embed it, I would.

Let me turn the floor over to Professor Turley, not as an appeal to authority, but because there is no reason for me to write in different words what he has said persuasively already:

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