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

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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Remembering The First Ethics Hero Emeritus, Sir Edmund Hillary, 1919-2008

Hillary_statue

This post was supposed to go up yesterday, May 29, but as has happened too often in recent months, the vicissitudes of existence got in the way of Ethics Alarms. May 29 is the anniversary of the epic moment when, at 11:30 a.m. on May 29, 1953, Edmund Hillary of New Zealand and Tenzing Norgay, a Sherpa of Nepal, become the first explorers to reach the summit of Mount Everest. At 29,035 feet above sea level, the peak of Everest is the highest point on earth. Hillary and his Sherpa guide were part of a British expedition, and the two completed their successful assault after spending a perilous night on the mountain at 27,900 feet.

Hillary’s tribute is included in the The Ethics Alarms Heroes’ Hall Of Honor, but for several years had been unavailable, unbeknownst to me, because I hadn’t connected some dots. The essay about him was a link to my 2008 post on the predecessor of Ethics Alarms, The Ethics Scoreboard, which was offline. I had forgotten that (and if anyone tried to access the article and failed, they never let me know), so the first Ethics Hero to be awarded that Ethics Hero Emeritus title was also the only such hero dishonored by my carelessness.

I apologize, Sir Edmund.

The Ethics Scoreboard is back online (and worth a visit), but I am finally putting the 2008 piece here, on Ethics Alarms, where it should have been long ago.

Ethics Hero Emeritus: Sir Edmund Hillary 1919-2008

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Sunday Morning Ethics Warm-Up, 2/28/21: A Missing Part 2, And More…

“Never on a Sunday” was a surprise international hit film in 1960, a romantic comedy starring Melina Mercuri as a choosy Greek prostitute. The actress also recorded the film’s title song, which had a, er, slightly different meaning in Greek, as my mother, who spoke Greek, delicately explained to me at the time. “Kiss,” mom said, doesn’t exactly mean kiss. Nevertheless the song was covered by lots of singers. including the pre-“Downtown” Petula Clark, and was ubiquitous for months. It was also the first song I ever wrote a parody of, #1 of hundreds.

1. It’s comforting to know that the conservative media is trying to be just as unfair to President Biden as the progressive news media (also known as “the media”) was to President Trump. Yesterday i read many stories about how Biden had a complete meltdown during a speech, didn’t know where he was and asked, “What am I doing here?” As you can see for yourself, that’s a false representation. Joe looks vague and unwell, but he merely got lost momentarily reading a list of names. I have said out loud, “What am I doing?” on more than one occasion while speaking.

2. And this is why it’s important to have a conservative Supreme Court: The Supreme Court ruled on February 26 that Santa Clara County may not enforce a complete ban on indoor religious services as part of California’s draconian pandemic measures. (Wait, I’m confused: who are the fascists again?) Earlier, the Court told California that indoor church services could not be banned because of the pandemic, but allowed the state to cap attendance at 25% capacity and to prohibit singing and chanting.

Santa Clara argued that its ban and limitations on any indoor gatherings should be allowed to stand because its restrictions for churches were the same as those imposed on other establishments where people can visit but not gather in groups. The Justices’ unsigned order last week said that the earlier order “clearly dictated” that Santa Clara’s ban could not stand. Chief Justice John Roberts had written at the time,

“The state has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID-19. I see no basis in this record for overriding that aspect of the state public health framework. At the same time, the state’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”

Showing their insufficient appreciation of the interest at stake—the right to worship—were the three liberal Justices, Kagan, Sotomayor, and Breyer.

3. I was going to post a follow-up to this post about the film “Denial” (hence the “Part I” in the headline) and other issues intervened. (Sorry). To summarize briefly, Part 2 was going to recount my own run-in with Prof. Lipstadt at the time of her defamation trial when she was sued for defamation by a Holocaust-denying British historian in 2005. In my previous ethics website, the suddenly returned Ethics Scoreboard, I gave C-Span an Ethics Dunce award based on Prof. Lipstadt’s account that it had insisted that the Holacuast denier’s arguments be presented on video as a condition of her appearance on its broadcast. I wrote in part,

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“Nipplegate” Revisited

nipplegate

Today is the anniversary of Nipplegate, which, you probably recall, is when Janet Jackson and Justin Timberlake executed their juvenile plot to get cheap publicity by flashing her breast during the 2004 Super Bowl XXXVIII half-time show (back when I watched the Super Bowl in my ignorance of just how vile the NFL was) and began lying about it. By the time the dust cleared, the Federal Communications Commission had received 540,000 complaints about the incident. Viacom, CBS’ parent company, received the maximum fine the FCC could issue for such offenses, and paid $3.5 million to settle indecency complaints about the broadcast.

Ethics Alarms has featured two reflections on that incident. One was a rebuttal, an easy one, of pop culture pundit Emmanuel Hapsis’s ridiculous analysis, declaring the episode as exemplifying America’s “patriarchy,” “racism” and “sexism.” I wrote then, tongue piercing my cheek, that “obviously no white singers flashing ten-year-olds in TV land would be criticized, and no male singer who decided to let Mr. Wiggly make a guest appearance would be similarly pilloried.” I received a wave of really nasty comments on that one, highlighted by someone named Troy whom I honored, sort of, with a Comment of the Day in 2018. I’ll revisit it with pleasure now, since it’s short, funny and stupid. He wrote,

Madonna’s white ass has been showing her boobs, coochie and anything else that is of a sexual nature all through the late 80’s up until today…and though she got criticized for her antics, even pissing off the Catholic Church with her attention seeking ways, as soon as a black woman gets’ exposed by a this privileged white boy, then the whole white world screams OMG, OMG, hang her, nail her to the cross…blame her, blame her…this whole fiasco is reminiscent of how whites back in slavery times would lynch blacks for solely being black and then again in modern times how white people can cuss a police officer out, spit in their face, fight them and get taken to prison to cool off with only a slap on the wrist…but a black person get’s pulled over and by a white officer for having expired license plates or a busted tail light and they never make it to jail, they are taken straight to the morgue, because like what White Boy Privileged Justin did to Janet, it becomes a black issue and she was the only one who got blamed, black balled and even her apology was not enough for the privileged whites, she had to PAY and pay dearly. So for all those white privileged reading this article, and saying she does not deserve an apology, I GET IT, you all want her HANGED…It’s what you all believe to be punishment to the full extent for this black woman, who has NEVER, EVER been in any trouble, caused any drama and had been low-key, and private all of her life until that one millisecond to be torn to shreds by the white privileged…well for those of us who are WOKE, we see What Madonna has made a career of doing, Janet should get the death penalty. So white privileged of you all.

“Madonna’s white ass has been showing her boobs” might be my favorite phrase to appear on this site in ten years.

It’s also disturbing to realize that Troy could probably be elected to Congress today with that level of analysis. But I digress.

The unexpected reappearance of The Ethics Scoreboard online now gives me the opportunity to re-post the commentary there about “Nipplegate” written shortly after it all occurred. So, in commemoration of that ethics train wreck, and also because I wouldn’t change anything I wrote then, here is an encore, slightly edited, of “The Breast,” from February 11, 2004.

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The Breast

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Just To Review: The Ethics Of Illegal Immigration Doesn’t Change

Honduras caravan

Yes, that’s the Honduras caravan above, headed to the U.S. with the encouragement of Joe Biden.

President Biden, predictably, is making illegal immigration (or as progressives like to call it to confuse the public and call people racists, “immigration”) a priority, thus immediately resurrecting an ethics debate that has been relatively quiet lately. As background for the discussions here that will necessarily come, here is one of the articles on the topic from The Ethics Scoreboard—as long as it has mysteriously re-appeared from cyber-limbo, we might as well take advantage of it. This post is from March 27, 2006; the impetus was a bill in Congress that sought to address the illegal immigration mess, and that anyone could tell was doomed to fail, which indeed it did. Nearly 14 years later, we are having the same arguments, with the same deceit regarding the same facts and issues. It’s depressing, but the subject cannot be ducked just because it is difficult and unpleasant. The post below, then titled H.R. 4437: Impossible But Ethical” is presented as a helpful primer. (Also worth reading, “Advocate Deceit And Illegal Immigration”, from 2007.)

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The Surprise Return Of The Ethics Scoreboard, And “The Bank of America Teller and the Thumbless Customer”

Ethics Scoreboard

The Ethics Scoreboard was my first ethics website. It began operation in February of 2004, and became an archive on November 1, 2009, when Ethics Alarms took its place. For many years now—frankly, I’ve lost count—it has been unavailable on the Web because of an incompetent hosting service that took my money, took it down, and doesn’t permit any direct customer service contact. Last time I checked, the domain was unclaimed. I stopped looking for the Scoreboard because it depressed me, and I had hit a dead end in my efforts to get it back up.

Well, it’s back up, and I have no idea why or how. What a happy 2021 surprise! I suspect the original webmaster, my old friend Lauren Larson, is responsible, but if so, she never told me: I don’t even know how long the site has been live again. I learned about the resurrection from a wonderful man whom I met through the Scoreboard, Alek O. Komarnitsky, who sends out a holiday letter. This year, he wrote, “I am still on the Ethics Scoreboard!” and sure enough, there at the link was the last article I wrote about Alek.

There is a lot of material on the Scoreboard, some of which I am very proud of, and I thought it was all lost in cyberspace. For me, this is like finding a treasure trove of old family photographs in the attic. Thank you Lauren, thank you Alek, thank you incompetent hosting service, thank you whoever it was that did this! I will eventually get to the bottom of the mystery, but for now, I’m afraid to pinch myself to see if it’s a dream.

In celebration of the Return of the Prodigal Website, I now present one of the Scoreboard’s last posts, “The Bank of America Teller and the Thumbless Customer.”

Welcome back, Ethics Scoreboard! I really missed you.

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Ethics Test For Democrats And “The Resistance”: The Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States

You can read the proclamation here.

Unless I’m missing something, all it says is “The United States will enforce the law.” This, for some reason, is regarded with alarm by the New York Times, which writes,

“The Trump administration, invoking national security powers meant to protect the United States against threats from abroad, announced new rules on Thursday that give President Trump vast authority to deny asylum to virtually any migrant who crosses the border illegally.”

The President always had authority to enforce the law. In fact, his oath of office requires him to do so.

The literally insane idea that the United States should not enforce its borders that somehow has burrowed itself into the Left’s hive-mind will not prevail, and because it involves our survival as a nation, no matter what other misadventures President Trump blunders himself into, opposing this deadly virus of a concept will ensure his support from a broad coalition of the American public. Democrats and the news media could instantly reverse much of the polarization poisoning our democracy if they would only abandon their indefensible defense of illegal immigration, but they just can’t bring themselves to do it, presumably because they regard unfettered immigration as a path to total power. Continue reading

Ethics Hero: Baseball Great Joe Morgan

The baseball writers are filling out their Hall of Fame ballots, and Hall of Fame member Joe Morgan authored a much-needed letter on behalf of his fellow honorees to urge voters to keep steroid cheats out of the Hall. He wrote—on Hall of Fame stationary, so it is clear that this was both personal and official:

The Hall of Fame is Special – A Letter from Joe Morgan

Over the years, I have been approached by many Hall of Fame members telling me we needed to do  something to speak out about the possibility of steroid users entering the Hall of Fame. This issue  has been bubbling below the surface for quite a while. 

I hope you don’t mind if I bring to your attention what I’m hearing. 

Please keep in mind I don’t speak for every single member of the Hall of Fame. I don’t know how  everyone feels, but I do know how many of the Hall of Famers feel. 

I, along with other Hall of Fame Baseball players, have the deepest respect for you and all the writers who vote to decide who enters Baseball’s most hallowed shrine, the National Baseball Hall of Fame. For some 80 years, the men and women of the BBWAA have cast ballots that have made the Hall into the wonderful place it is. 

I think the Hall of Fame is special. There is a sanctity to being elected to the Hall. It is revered. It is  the hardest Hall of Fame to enter, of any sport in America. 

But times change, and a day we all knew was coming has now arrived. Players who played during  the steroid era have become eligible for entry into the Hall of Fame. 

The more we Hall of Famers talk about this – and we talk about it a lot – we realize we can no longer  sit silent. Many of us have come to think that silence will be considered complicity. Or that fans  might think we are ok if the standards of election to the Hall of Fame are relaxed, at least relaxed  enough for steroid users to enter and become members of the most sacred place in Baseball. We don’t want fans ever to think that. 

We hope the day never comes when known steroid users are voted into the Hall of Fame. They  cheated. Steroid users don’t belong here. 

Players who failed drug tests, admitted using steroids, or were identified as users in Major League  Baseball’s investigation into steroid abuse, known as the Mitchell Report, should not get in. Those  are the three criteria that many of the players and I think are right. 

Now, I recognize there are players identified as users on the Mitchell Report who deny they were  users. That’s why this is a tricky issue. Not everything is black and white – there are shades of gray  here. It’s why your job as a voter is and has always been a difficult and important job. I have faith in  your judgment and know that ultimately, this is your call. 

But it still occurs to me that anyone who took body-altering chemicals in a deliberate effort to cheat  the game we love, not to mention they cheated current and former players, and fans too, doesn’t  belong in the Hall of Fame. By cheating, they put up huge numbers, and they made great players  who didn’t cheat look smaller by comparison, taking away from their achievements and consideration for the Hall of Fame. That’s not right. 

And that’s why I, and other Hall of Famers, feel so strongly about this.  

It’s gotten to the point where Hall of Famers are saying that if steroid users get in, they’ll no longer  come to Cooperstown for Induction Ceremonies or other events. Some feel they can’t share a stage  with players who did steroids. The cheating that tainted an era now risks tainting the Hall of Fame  too. The Hall of Fame means too much to us to ever see that happen. If steroid users get in, it will  divide and diminish the Hall, something we couldn’t bear. 

Section 5 of the Rules for Election states, “Voting shall be based upon the player’s record, playing  ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player  played.” 

I care about how good a player was or what kind of numbers he put up; but if a player did steroids,  his integrity is suspect; he lacks sportsmanship; his character is flawed; and, whatever contribution  he made to his team is now dwarfed by his selfishness. 

Steroid use put Baseball through a tainted era where records were shattered. “It was a steroidal farce,” wrote Michael Powell in the New York Times. It is no accident that those records held up for decades until the steroid era began, and they haven’t been broken since the steroid era ended.  Sadly, steroids worked. 

Dan Naulty was a journeyman pitcher in the late 1990s who admitted he took steroids, noting that his fastball went from 87 to 96. He told Sports Illustrated’s Tom Verducci in 2012, “I was a full-blown  cheater, and I knew it. You didn’t need a written rule. I was violating clear principles that were laid down within the rules. I understood I was violating implicit principles.” 

The Hall of Fame has always had its share of colorful characters, some of whom broke or bent society’s rules in their era. By today’s standards, some might not have gotten in. Times change and  society improves. What once was accepted no longer is. 

But steroid users don’t belong here. What they did shouldn’t be accepted. Times shouldn’t change  for the worse. 

Steroid users knew they were taking a drug that physically improved how they played. Taking  steroids is a decision. It’s the deliberate act of using chemistry to change how hard you hit and throw by changing what your body is made of. 

I and other Hall of Famers played hard all our lives to achieve what we did. I love this game and am  proud of it. I hope the Hall of Fame’s standards won’t be lowered with the passage of time.  For over eighty years, the Hall of Fame has been a place to look up to, where the hallowed halls  honor those who played the game hard and right. I hope it will always remain that way. 

Sincerely, 

Joe Morgan

Good.

I agree in every respect. Continue reading

Encore: “The Guy In The Lobster Hat”

(This isn't the guy. I think it's his son...)

(This isn’t the guy. I think it’s his son…)

Longtime reader and commenter Neil Dorr chided me today for writing so much about the post-election media, political, and legal  ethics breaches going on, and not as much on the types of topics I tended to cover on the old Ethics Scoreboard, now an archive of an earlier time  when I thought a few posts a week could cover the topic of societal ethics. I was more innocent then, and I also had to depend on a webmaster: I posted more essays in the first year of Ethics Alarms than the entire output of the Ethics Scoreboard. Neil said he missed posts like the one about “the Lobster Hat”. I have to say, I don’t think there have been many posts likethe  one about the lobster hat, which was one of my occasional “a day in Jack’s strange life” posts. I had forgotten about it completely. I tracked the decade old post down, however, and for Neil, and anyone else who is interested in lobster hats, here it is..

Today I accompanied my wife to a doctor’s appointment that she was dreading, and while we were checking in with the receptionist, a large, rotund fellow with a long white beard walked in to do likewise. On his head was what appeared to be a large, red lobster…a hat of sorts, though not a very seasonable or practical one. It was spectacular, however, with two large claws that drooped down about eyebrow level, and an impressive tail in the back. If I were ordering this specimen at Jimmy’s Harborside in Boston, it would be about a four-pounder.

I was amused at this unexpected sight, and said to my wife, loud enough so Lobster-topped Santa could hear me, “See? You think you have medical problems. This poor guy has a lobster attached to his head!” To my surprise, the man turned sharply and looked at me with a furious glare, snorted, and walked out the door, clearly offended, exactly as if I had said, “Wow! That’s some harelip you have there!” or “Gee, where does a guy as fat as you buy suits?” Continue reading

Donald Trump: A Pre-Election Ethics Alarms Character and Trustworthiness Review: 2005-2016 [UPDATED]

trump-mocks-disabled-reporter-cnn-usa-today

Donald Trump has no character or trustworthiness. Next question?

Oh, all right, in the interests of equity and fairness, I’ll submit The Donald to the same process as I did with Hillary Clinton, though in his case the verdict is res ipsa loquitur. Trump’s lack of ethics and his unfitness to fill the shoes of Washington, Lincoln, Teddy, FDR, or Millard Fillmore is, or should be, self-evident. Those for whom it isn’t self-evident are either ignorant, devoid of values themselves, or intentionally seeking to harm the United States.

I’ve been writing about the awfulness that is Donald Trump since 2005. He was noted for his dishonesty on my Ethics Scoreboard when I called foul on his marketing “various ‘get rich’ products, including tapes, seminars, and “Trump U,” an on-line delivery system for more of the same.” I wrote in part

There are thousands upon thousands of Americans who started with meager resources and made themselves rich through talent, hard work, creativity, inventiveness, and some luck. …Not Trump. The success of his pitch to the desperate wannabes and clueless is based on their erroneous assumption, nurtured by Trump but not explicitly supported by him, that he can teach them to do what they think he did…make himself rich through hard work and a business savvy. But what Trump is best qualified to teach is how to make yourself richer when you inherit an established business and have millions of dollars plunked into your waiting hands after your Dad has sent you to Wharton.

The fact that Trump doesn’t lie outright about his background but simply allows his marks to jump to the wrong conclusions puts his “get rich like me” marketing efforts in the category of deceit…but deceit is still dishonesty. Trump undoubtedly has useful wisdom to impart about building a successful career; it’s not as easy to stay rich as some people think. Ask most state lottery winners. Still, the most vivid lesson of Donald Trump’s successful campaign to sell himself as a self-made billionaire is the lesson that 19th Century con-man Joe Bessimer pronounced more than a century ago: There’s a sucker born every minute.

So we knew, or should have known, that this was a con artist at least back eleven years. In 2006, I posted on Trump’s misogyny and incivility, writing about the first outbreak of his feud with the equally vile Rosie O’Donnell, and their public name-calling…

Rosie set off the exchange by suggesting on ABC’s “The View” that Trump’s recent assumption of the role of moral exemplar by chastising and threatening to fire the reigning Miss USA for being a party-girl was more than a little ridiculous, given his own well-documented penchant for fast women and extra-marital affairs. Sometimes Rosie’s full of beans, and sometimes she gets it right; this time she was right, but spoiled it by concluding her commentary with some unflattering name-calling. Trump, no girly-man he, immediately said he would sue O’Donnell, and then launched into an extended riff on how unattractive and fat she was, including the charming phrase, “pig-face.” Classy as always, Donald…. Yes, anyone who admires either of these two annoying characters already has a problem, but there is no escaping the fact that both are celebrities, and as celebrities they contribute to establishing cultural norms of civility and conduct. This is especially true of Trump, who despite his low-life proclivities is a successful business executive. Resorting to personal attacks on an adversary’s weight or appearance is disrespectful, unfair, cruel and indefensible. Doing so on national media is like firing a shotgun into a crowd. There are a lot of fat or unattractive women out there, Mr. Trump, who are smart, generous, productive, loving, intelligent people… Golden Rule, anyone? How are we to convince our children not to ridicule the personal traits of others, when those they see as rich, famous and successful do the same openly, shamelessly, and even gleefully?

You can imagine my continued amazement that ten years after writing this rather obvious assessment, without Trump having undergone a complete transformation, and indeed with his conduct and public statements becoming worse rather than better, we are on the eve of a day that may live in infamy as the moment democracy  completely failed the United States of America, inflicting on it, and the world,  as unstable and unqualified a leader of a great power as history has ever witnessed. Continue reading