Law & Law Enforcement

Morning Ethics Warm-Up, 8/26/2021: Should We Never Again Use “Never Again!” To Refer To Something That Never Should Happen Again…And Other Matters

/ Jack Marshall / 11 Comments

I’m not a big Liza Minelli fan, and for over a decade now she has been rather pathetic (perishing early, like her mother, can be a smart career move for some artists), but still: I wonder if her film-ending performance of the title number in “Cabaret” is the most exhilarating solo by a female singer in any movie. It’s substantially the way the song is directed (by Bob Fosse), of course, that makes it so effective, but even so: the moment is a great legacy for Liza even if everything else in her career fades from memory. Just as Saroyan was right that if one human being sings your song, you haven’t lived in vain, creating one unique moment that inspires or uplifts others is a gift to the world.

And Liza’s moment also is a tonic I turn to to get me ready to face the day when the prospect of thinking and writing about ethics makes me want to go back to bed. Like right now.

1. Wait, I thought Joe Biden was supposed to be a nice guy! In an article about Andrew Cuomo’s final days in office, I learned that President Biden, who is a “close personal friend” of the now ex-governor of New York, has not spoken to him since Cuomo resigned two weeks ago. What kind of “close friend” is that? Whether Cuomo was treated justly or not (he was), his life has fallen apart in chunks this month (and began doing so months earlier). This is when friends, real friends, are most essential, and also when fake friends show their true character. Joe Biden’s entire political career has been built on the assertion that he is, whatever other flaws he might have (like being a lifetime chowderhead), a good, loyal and trustworthy person. Well, he’s not. This is hardly the first evidence we’ve seen of that, but it’s signature significance.

2. Is saying something should never happen again really “comparing it to the Holocaust”? This is Thursday, meaning that I get a lot of substack newsletters from pundits who want me to subscribe to theirs. Craig Calcaterra, the baseball writer whose product I will not pay for untilhe stops filling it with opinions on things he knows no more about than most people, filled today’s free offering with (let’s see) 740 words of baseball analysis (not counting brief accounts of last night’s games) and 2, 326 words about Republicans he hates, Billy Joel albums. and, most of all, a local school board member where he lives who wrote on his Twitter account,

“And if we are to truly learn from our mistakes these past 18 months Just as Jews after the horrors of the Holocaust We must declare, and implement laws to assure “Never Again” . . .Never again should we delegate policy authority to those qualified only to provide narrow advice Never again should we willingly sacrifice liberty without objective proof of imminent harm, and an objective restoration plan — in advance . . . Never again should emergency government authority extend beyond 7 days without legislative consent, reconfirmed every 7 days Never again should we blindly follow experts, regardless of the initials after their name, if they don’t provide proof, show their work & admit error . . . Never again should we EVER sacrifice the needs of children to the unfounded fears of adults.”

The writer is Jewish, by the way. Calcaterra uses the “offensive comparison” as a version of ad hominen attack to excuse him from the task of rebutting the writer’s substantive arguments and appeal to emotion, which is why I would never evoke the Holocaust in such a context simply as a matter of advocacy strategy. However, the school board member wasn’t comparing the genocide of 6 million Jews to pandemic totalitarianism, but stating that similarly absolutist policy prohibitions are appropriate after what we have learned from the past year and a half. There are a lot of things the U.S. has done that deserve a “Never again!” label—electing an obviously progressive dementia case as President, for example. Critics of the label are obligated, though, to deal with the reasons for making that claim, and should not be allowed to get away with “How dare you insult the victims of genocide by comparing what befell them to electing Joe Biden!”

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The Baby On The Album Cover: Dumb Lawsuit, Valid Ethics Point

/ Jack Marshall / 8 Comments

Naked baby cover

Thirty years ago, Spencer Elden, age four months, was photographed by a family friend naked and floating in a pool at the Rose Bowl Aquatics Center in Pasadena, California. The striking and cute photo was then sold by his parents to be the cover of “Nevermind,” the rock band Nirvana’s second album that shot the Seattle band to international fame. (Never could stand Nirvana myself.)

Through the years Elden pretty much exhausted the opportunities to exploit his accidental celebrity, recreating the wet, wild and adorable moment for the album’s 10th, 17th, 20th and 25th anniversaries (but not with his naughty bits exposed, of course) “It’s cool but weird to be part of something so important that I don’t even remember,” he said in an interview with The New York Post in 2016, in which he posed holding the album cover at 25. Eldon even reportedly has “Nevermind” tattooed on his chest.But this year he needs money, or has a change of heart, or met up with an unethical lawyer, or something. Now Elden is suing Nirvana for damages, claiming his parents never signed a release authorizing the use of his image on the album, and more provocatively, that his nude infant image constitutes child pornography.

“The images exposed Spencer’s intimate body part and lasciviously displayed Spencer’s genitals from the time he was an infant to the present day,” legal papers filed in California claim. Lasciviously? The album cover indeed showed Elden as a baby with his genitalia exposed. Maybe it also made tiny Spencer seem greedy, since the graphic artist added a digitally added dollar bill on a fishing line, leaving the impression that the tot was trying to grab the dollar.

Of course, he IS greedy now.

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The FIFA Scandal’s Lesson: The U.S. Government Does Not Comprehend The Principle Of “A Culture Of Corruption”

/ Jack Marshall / 2 Comments

jackheadexplosion

Why I am I not surp….oh, oh, there goes the head again. I guess I am surprised after all.

Since I regard soccer as about as entertaining as watching paint dry, I took only scant notice of the massive scandal in 2015 involving the Fédération Internationale de Football Association (FIFA), which oversees international soccer. More than 50 people and companies were charged in the case, and dozens have pleaded guilty. You can catch up here; I’ll wait.

All set? OK, then process this: six years after the massive criminal indictment exposed decades of corruption in global soccer, the U.S. government approved the payment of more than $200 million to….wait for it!—- to FIFA as well as its two member confederations also implicated in the scandal.

See, the theory is that the organization that was run by the individuals who stole all that money and engaged in bribery, money laundering and corruption, was really just another victim of it all. The repayment begins with an initial payment of $32.3 million in forfeited funds, the Justice Department announced, and prosecutors have approved a plan in which the soccer organizations could receive as much as $201 million.

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The Ashli Babbitt Cover-Up

/ Jack Marshall / 17 Comments

Someone please explain how the closing of the investigation of the shooting of Ashli Babbitt can be reconciled with the sentence just handed down in the case of the Alabama officer who shot an allegedly suicidal man who would not drop his gun.

The US Capitol Police officer who shot and killed pro-Trump rioter Ashli Babbitt on January 6, 2020 will not face any disciplinary action. “USCP’s Office of Professional Responsibility (OPR) determined the officer’s conduct was lawful and within Department policy, which says an officer may use deadly force only when the officer reasonably believes that action is in the defense of human life, including the officer’s own life, or in the defense of any person in immediate danger of serious physical injury,” the department said in a statement. The department will not name the officer out of consideration for the officer’s safety, although his name has been unofficially on the web for quite a while. If this is not a USCP double standard, it is certainly a journalism and political double standard. A black officer who shot an unarmed white women is protected with official anonymity while one white officer after another in police-involved shootings of black men have had their names not only released, but published and made the targets of attacks by elected officials.

Prof. Jonathan Turley, hardly a rabble-rouser, writes in damning prose:

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Monday Morning Ethics Warm-Up, 8/23/2021: Farewell Everly Brothers And Other Problems

/ Jack Marshall / 16 Comments

Don Everly has died, and that’s the end of the Everly Brothers (Phil died years ago), one of the most influential and perhaps the most harmonious singing group of all time. The unique sympathetic vibrations that only sibling singers seem to be able to achieve is a marvelous metaphor for the ethical benefits of teamwork and trust.

This date also marks the demise of another famous duo: despite worldwide demonstrations in support of their alleged innocence, Italian-born anarchists Nicola Sacco and Bartolomeo Vanzetti were executed for murder in Massachusetts in 1921 .On April 15, 1920, a paymaster for a shoe company in South Braintree was shot and killed along with his guard. The murderers, who escaped with more than $15,000, were described by witnesses as two “swarthy Italian men.” Sacco and Vanzetti were arrested and charged with the crime. The men carried guns and lied to the police, but neither had a previous criminal record, and they definitely didn’t get a fair trial by modern standards. Prejudice against Italian-Americans was strong, and suspicion of anarchists was stronger. The pair was convicted on July 14, 1921, and sent to the electric chair on August 23.

A TV dramatization of their case, written by Reginald Rose (who authored “Twelve Angry Men”) made a huge impression on me as a child, and sparked the first stirrings of my interest in the law. In 1961, a test of Sacco’s gun using modern forensic techniques proved that it was his gun that killed the guard; he, at least, was guilty, but there was little evidence to implicate Vanzetti in the killing. To make this ethics train wreck complete, Massachusetts Governor Michael Dukakis ignored the evidence of Sacco’s guilt and issued a proclamation exonerating both Sacco and Vanzetti and proclaiming that no stigma should be associated with their names.

Typical of Dukakis.

1. Accountability? What accountability? “Sources”—and I stipulate that un-named “sources” are untrustworthy—tell various news outlets that “President Biden isn’t inclined to fire any senior national security officials over the chaos in Kabul unless the situation drastically deteriorates or there’s significant loss of American life.” That sounds as likely as it is depressing. The reluctance of American Presidents to fire subordinates for gross incompetence has become the norm rather than the exception, and the trend ensures that our government, whoever is the President and whatever party is power, will continue to decline in competence and trustworthiness. Consider President Bush’s refusal to fire any of those responsible for the botched intelligence regarding Iraq’s WMDs, and later Abu Ghraib, or my personal favorite, Barack Obama’s refusal to acknowledge the gross incompetence of Kathleen Sebelius, his Secretary of Health, after her inexcusable reliance on a flawed website to launch the Affordable Care Act.

Dumber still is the qualification “unless the situation drastically deteriorates or there’s significant loss of American life.” Morons. Morons! Whether the situation gets worse or not is pure moral luck; it doesn’t change the utter incompetence of the Afghanistan abandonment. Imagine a babysitter who gives a toddler knives to play with, and a parent whose reaction is, “Well, the kid wasn’t hurt, so there’s no reason to fire her.” That is literally what the reasoning at the White House is…if “sources” are accurate.

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Gee, What A Surprise: The FBI Finds No Evidence That The Jan.6 Capitol Riot Was An “Insurrection”

/ Jack Marshall / 7 Comments

shocked face

There’s the “shocked face” of the once popular commercial featuring a talkative and opinionated infant. (The kid must be 40 by now, but his expression is immortal.)

Yet another Big Lie that the Axis of Unethical Conduct (“the resistance”/ Democrats/ Mainstream media) wielded shamefully for a disgusting amount of time is tumbling down. From Reuters:

“The FBI has found scant evidence that the Jan. 6 attack on the U.S. Capitol was the result of an organized plot to overturn the presidential election result, according to four current and former law enforcement officials. Though federal officials have arrested more than 570 alleged participants, the FBI at this point believes the violence was not centrally coordinated by far-right groups or prominent supporters of then-President Donald Trump, according to the sources, who have been either directly involved in or briefed regularly on the wide-ranging investigations. “Ninety to ninety-five percent of these are one-off cases,” said a former senior law enforcement official with knowledge of the investigation. “Then you have five percent, maybe, of these militia groups that were more closely organized. But there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.”

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Evening Ethics, 8/19/2021: Those Were The Days…

/ Jack Marshall / 11 Comments

Ah, those heady days when the U.S. felt ethically justified in toppling governments it didn’t approve of, and “nation building” was still considered practical and virtuous. Today marks the anniversary of the U.S. overthrowing the government of Premier Mohammad Mosaddeq and reinstalling the Shah of Iran in 1953, The Shah was a torturing, oppressive autocrat, but he was our torturing, oppressive autocrat for 26 years, a dependable anti-Communist ally of the United States until a revolution ended his rule in 1979. You should know the rest. Wonder why Iranians aren’t crazy about the U.S.? Today is one big reason. Also on the ethics regrets list is the release of the West Memphis Three on this date in 2011. I wrote about that one here. An excerpt:

“In an ethical system, prosecutors would have made certain the wrongfully convicted men were freed, without any further adversary action. But this was not an ethical system. Instead, prosecutors insisted on a bizarre plea deal in which the Memphis Three agreed to take an Alford plea, a strange, dishonest and much criticized guilty plea in which a defendant essentially lies to avoid an otherwise unavoidable unjust punishment. With an Alford plea,  the prisoner or defendant asserts he or she is innocent, but acknowledges that the prosecution has sufficient evidence to prove guilt beyond a reasonable doubt, and thus acknowledges legal, though not actual, guilt.   Prosecutors insisted that all three men plead “guilty” in this fashion in order to agree to release them with time served. The judge accepted the deal. Now Echols, Baldwin and Misskelley are free, their lives all but ruined by 18 lost years, thanks to a rotten system. The news media for the most part didn’t bother to explain why the terms of their release was just one more gratuitous assault on their existence by Arkansas legal hacks.”

I’m sorry today reminded me of this case. It still upsets me to think about it.

1. Here’s evidence that the current complaints of antiracism propagandists is a crock: Denzel Washington. I’ve been watching a lot of his movies lately, and a comparison with Sidney Poitier is unavoidable. Poitier was the ground-breaker, the black man who became a genuine movie star in a majority white market, and more than that, did it by holding up the racism and discrimination in American culture for all to see. Nonetheless, he was limited by his race. Poitier always played character’s whose race was central to their roles in the plot. He never played a villain: like many stars, like John Wayne, Cary Grant and Clark Gable, he regarded his career as a continuous work exploring a particular archetype in all of its facets. For Poitier, it was that of the outstanding black man as an outsider in American society. In Poitier’s amazing year of 1967, he was in three hit movies: “In the Heat of the Night,” “Guess Who’s Coming to Dinner?,” and “To Sir, With Love.” All three featured Poitier as a black man thrust into a biased white environment, and gradually earning respect and some measure of equality. Today the #1 black star is Denzel, and he doesn’t have to play such sanctimonious roles. Race plays a part in many of his movies; he has even played black civil rights activists, like Malcolm X and Hurricane Carter. Washington, however, in part because of Poitier’s work, often plays parts that were written for white actors, and nobody cares. He isn’t afraid to play flawed characters and even brutal ones, like in “The Equalizer.” Washington’s success, and the versatility and range he is allowed to explore in his movies, would have been impossible in Poitier’s prime years. His body of work is proof of how far American attitudes toward race have advances and how unfair and dishonest the Black Lives Matter/ Critical Race Theory narrative is holding that the Jim Crow culture still rules America.

Denzel is also better than Poitier, although it is fair to say that Poitier never had the option of being as versatile as Washington. If Sidney Poitier is cinema’s Jackie Robinson, Denzel Washington is its Willie Mays.

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Ethics Quiz: Apple Thinks Of The Children

/ Jack Marshall / 34 Comments

Apple privacy

Last week, Apple announced a plan to introduce new technology that will allow it to scan iPhones for images related to the sexual abuse and exploitation of children. These tools, however, which are scheduled to become operational soon, can be used for less admirable objectives, like so many technologies.

Apple’s innovation will allow parents have their children’s iMessage accounts scanned by Apple for sexual images sent or received. The Parents would be notified if this material turns up on the phones of children under 13. All children will be warned if they seek to view or share a sexually explicit image. The company will also scan the photos adults store on their iPhones and check them against records corresponding with known child sexual abuse material provided by organizations like the National Center for Missing and Exploited Children.

Cool, right? After all, “Think of the children!!” (Rationalization #58) But while Apple has promises to use this technology only to search only for child sexual abuse material, the same technology can be used being used for other purposes and without the phone owner’s consent. The government could work with Apple to use the same technology to acquire other kinds of images or documents stored on computers or phones. The technology could be used to monitor political views or “hate speech.

Computer scientist Matthew Green, writing with security analysist Alex Stamos, warns,

“The computer science and policymaking communities have spent years considering the kinds of problems raised by this sort of technology, trying to find a proper balance between public safety and individual privacy. The Apple plan upends all of that deliberation. Apple has more than one billion devices in the world, so its decisions affect the security plans of every government and every other technology company. Apple has now sent a clear message that it is safe to build and use systems that directly scan people’s personal phones for prohibited content.”

Your Ethics Alarms Ethics Quiz of the Day:

Does the single beneficial use of the Apple technology make it ethical to place individual privacy at risk?

 

Ethics Quiz: Shock Therapy For The Disabled

/ Jack Marshall / 25 Comments

15electricshock-3-jumbo

Here is an issue from July that I never had time to write about…

In a 2-1 opinion, the U.S. Court of Appeals for the D.C. Circuit overturned a Federal the ban on the use of electric shock devices to modify destructive or otherwise problematic behavior by students with intellectual disabilities. The Food and Drug Administration sought to prohibit the devices in March 2020, saying that delivering shocks to students presents “an unreasonable and substantial risk of illness or injury.” The court ruled, however that the ban was a regulation of the practice of medicine, which is beyond the FDA’s authority.

The now banned ban only affected a single school, the Judge Rotenberg Educational Center in Canton, Massachusetts. It is the only facility in the United States that employs the shock devices to correct self-harming or aggressive behavior. The center serves and houses both children and adults with intellectual disabilities or behavioral, emotional or psychiatric problems.

What ethics approach do we use to assess such a practice?

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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.

***

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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