Encore: “Regarding ‘Athlete A’….”

[I watched “Athlete A,” the infuriating Netflix documentary for the second time, and completely forgot that I had written about it here when it first came out. (I’m sure glad I checked.) It is gratifying, I guess that most of what I was prepared to write today was what I wrote in 2020. I was not, however, emphatic enough about the implications of the multi-level failures of ethics decency, responsibility and accountability that allowed this disaster to occur. For in addition to Larry Nassar, the sick, manipulative doctor who used his position to sexually molest hundreds of young girls for more than 20 years, this mass crime was inflicted by stunning corruption and cruelty by key officials in the U.S. Olympic Committee, gymnastic coaches, Michigan State officials (where Nassar worked when he wasn’t sexual assaulting female gymnasts) and—is this even shocking any more?—the FBI. Then there are the parents of the gymnasts, who shipped their daughters off to be cared for by strangers who often abused them.

I suppose this story bothered me more this week than it did in 2020 because we have finally learned the truth about the Russian collusion hoax, the multi-level failure of integrity and trust that marred the 2020 election, and the horrific betrayal by so many institutions that inflicted the pandemic lockdown on us with the incursion on basic liberties that it involved, the discovery that schools are secretly pushing their students into life-altering gender confusion, while Big Tech and social media platforms conspire with the government to censor speech. I confess that I am less inclined to look at the Larry Nassar scandal as an anomaly today than three years ago. Now I am thinking: if we can’t trust our institutions to have sufficient ethics alarms that their leaders and key personnel choose the health and welfare of young girls over power, profit and selfish personal agendas, how can we trust them at all?]

Athlete A,” the Netflix documentary that tells the awful story of USA Gymnastics doctor Larry Nassar’s decades of sexually abusing young female gymnasts—perhaps as many as 500 of them—, how he was allowed to continue his crimes after complaints from parents and others, and the young women who finally sent him to prison with their testimony, is both disturbing and depressing. I watched it last night with my wife, who was horrified that she didn’t know the Nassar story.

Ethics Alarms wasn’t as much help as it should have been. Its first full post about the scandal was this one, which, in grand Ethics Alarms tradition, slammed the ethics of the judge who sentenced Nassar to 60 years in prison, essentially a “Stop making me defend Dr. Nassar!” post. I’ll stand by that post forever, but it didn’t help readers who are link averse to know the full extent of Nassar’s hobby of plunging his fingers and hands into the vaginas and anuses of trusting young girls while telling them that it was “therapy.”

The second full post, in August of last year,  was more informative regarding Nassar, but again, it was about the aftermath of his crimes, not the crimes themselves. That post  focused on the the Senate hearings following the July 30 release of the report of an 18-month Senate investigation  that found that the U.S. Olympic Committee and others failed to protect young female athletes from Nassar’s probing hands, detailing “widespread failure by the U.S. Olympic and Paralympic Committee (the “Committee”) and other institutions to keep athletes safe.”  Then there was this: Continue reading

Ethics Quote Of The Month: The 5th Circuit Court Of Appeals

“We find that the White House, acting in concert with the Surgeon General’s office, likely (1) coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences, and (2) significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”

—A three-judge panel of the The U.S. Court of Appeals for the Fifth Circuit in New Orleans, substantially upholding a lower court’s preliminary injunction in The State of Missouri et al v Joseph R. Biden, Jr., et al,

The Per Curiam opinion is here, and its legal and ethical clarity cannot be overstated. The Court wrote in part,

. . . On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content. Privately, the officials were not shy in their requests—they asked the platforms to remove posts “ASAP” and accounts “immediately,” and to “slow[] down” or “demote[]” content.

It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats.

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A Rationalization #22 Mitigation Of U.S. Progressive Racial Spoils: Canada Is Even Worse

Rationalization #22, in my view the worst of the over 100 rationalizations on the list, is called “The Comparative Virtue Excuse,” or “It’s not the worst thing.” I immediately thought of it when I read the head-exploding account of how a father escaped jail time in Canada for incest that resulted in the birth of a disabled child who has been placed in foster care. The father admitted that he had regularly had sexual relations with his daughter since she was 19 or 20. Incest is typically punishable with a jail sentence of at least two years and as high as 14 years, but a majority of the Nova Scotia Court of Appeal decided last month that the father shouldn’t have to spend any time in jail at all, just two years of house arrest, with a monitor. That’s nice. He can even continue his loving relationship with his daughter under those rules.

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From The “Eternal Vigilance Is The Price Of Liberty”: A Law Firm Is Caught Inflicting “Good Racial Discrimination” And Backs Down

The scary part is that a major law firm really thought it would be legal to do this, or perhaps knew it wasn’t legal but thought it could get away with it anyway.

The law firm Morrison Foerster, based in San Francisco, was sued for excluding non-minority students from its so called “diversity fellowships,”described as a program for first-year law students who are members of “a diverse population that has historically been underrepresented in the legal profession,” such as black, Hispanic, Native American and LGBTQ+ individuals. The plaintiff in the suit was the American Alliance for Equal Rights (AAER), founded by same conservative activist who brought the lawsuits that resulted in the Supreme Court finally declaring affirmative action in college admissions what it had always been: unconstitutional racial discrimination.

A few weeks after the lawsuit was filed, the firm removed all references to race from the program page on its website, an implicit statement that “OK, you caught us. Never mind!” The program now is described as

designed to recognize “exceptional first and second-year law students with a demonstrated commitment to diversity and inclusion in the legal profession.” In other words, the firm is substituting viewpoint discrimination for racial discrimination.

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The Other Shoe Drops In The Alex Murdaugh Murder Trial Train Wreck

In March, disbarred South Carolina lawyer Alex Murdaugh was sentenced to two consecutive life sentences after a jury found him guilty yesterday of the 2021 slayings of Maggie and Paul Murdaugh, his wife and son. Murdoch, who already faced life in prison for his financial crimes and who is a compulsive liar, was convicted despite an extremely weak case in which the prosecution barely proved necessary elements of the crime. The only motive for his murdering his family the state could come up with was that he did it to was to take attention away from his other offenses. Okaaaaay…

Here is what I wrote about the case after the trial…

“Reviewing the astoundingly thin evidence, I do not understand why the trial judge didn’t throw out the jury’s verdict and declare Murdaugh acquitted because there was not enough to convict him beyond a reasonable doubt as a matter of law. There wasn’t. This was an example of a jury convicting a defendant of murder because they decided he was a bad guy and there were no other suspects. Alex Murdaugh lied repeatedly regarding the deaths of his wife and son and he was undeniably a thief and a sociopath—but prosecutors couldn’t and didn’t present much more than theories about whether he was the killer. Judges are understandably, reluctant to over-ride juries, but in this case it was necessary. If the Trump Deranged reasoning that the conclusion that someone is just an untrustworthy bounder is sufficient to assume guilt of criminal activity is becoming a cultural norm, our justice system is approaching a crisis, if it isn’t in one already.

The news yesterday suggests that the jury verdict may have another explanation.

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This War Crimes Prosecution Is Vengeance, Not Justice

After Ethics Alarms looked at the case of a German tennis player freaking out because a fan quoted the Nazi-era lyrics of the German National anthem while he was playing a match, I found out that the German justice system has metaphorically said, “Hold my beer!”

German prosecutors announced last week that they have charged a 98-year-old man with being an accessory to 3,300 murders because he served as a guard at the Sachsenhausen concentration camp between 1943 and 1945. The indictment states that he “supported the cruel and malicious killing of thousands of prisoners as a member of the SS guard detail.”In recent years, German courts have ruled that people who helped a Nazi death camp function can be prosecuted as accessories to the extermination there without direct evidence that they participated in any particular deaths.

If a trial goes forward, the unnamed defendant will be tried as a juvenile. He was only 17 when he was required to be a concentration camp guard.

I certainly hope putting a 98-year-old man through the ordeal of a trial and, if he lives long enough, imprisonment for not opposing the Hitler regime as a teenager when the adults around him were going mad makes Germans feel better.

The fact that this cruel prosecution is being brought underlines the deep cultural problems that led Germany to Hitler, and shows that they still are distorting the nation’s understanding of right and wrong.

More On The Fake Defendant Ploy

Yesterday’s post about the lawyer facing disciplinary charges for secretly having someone else pretend to be her client in a hearing that would involve an alleged victim of a hit-and run identifying the defendant in court sparked references to Perry Mason and “Better Call Saul’s” central unethical lawyer using the same trick. I’ve also included a discussion of this tactic in my ethics orientation presentation for new bar members for many years. As some commenters pointed out, in court IDs where the alleged perpetrator of a crime is sitting next to the defense attorney at defense counsel’s table are inherently unfair. Courts have pointed this out too. The “fake defendant” ploy has been justified as avoiding that problem.

However, it isn’t nice to fool the judge. If a lawyer suspects that an alleged victim can’t identify his or her client and will point at anyone in the chair next to defense counsel, having someone who might resemble the defendant (or not) sit where the defendant would be expected to sit while the real defendant sits elsewhere in court might be permitted, but the judge has to be told about the plan and asked to approve it in advance. Not doing so almost guarantees a criminal contempt citation for the lawyer, maybe a mistrial, and eventual bar discipline. In addition, the lawyer cannot and must not refer to the fake defendant as his or her client by word or body language other than having the individual sitting at the lawyer’s table. Most jurisdictions have rules limiting who sits at counsel tables; that’s why Perry Mason’s ploy of using Della, his loyal legal secretary, to confuse the witness might have been at least legal in Los Angeles when he tried it.

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Now THAT’S An Unethical Lawyer…And An Ethics Dunce Too!

Lawyer Nicolle T. Phair of Sanford, North Carolina was representing a client in an alleged hit-and-run accident in Lee County, North Carolina, and thought she had an idea for a strategem worthy of Perry Mason. At a hearing, the victim of the accident was going to be asked to identify the defendant, Phair’s client. Shortly before the hearing began, the attorney asked her client to step outside the courtroom. She then went to another courtroom and asked a party in a civil case to “do her a favor.” The favor was to stand beside her in court in the hit-and-run hearing so the victim might identify the wrong man as the driver. Instant reasonable doubt! Brilliant!

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A Cautionary Tale: The Worst Social Media Influencer Ever?

(Don’t bet on it.)

Here at Ethics Alarms we try to steer clear of posts on conduct that is so obviously unethical that even the dimmest MSNBC host could figure it out. Normally, a mother being arrested after one of her kids escapes from the home, emaciated and with restraint marks, and begs a next door neighbor for help, would fall into this category. But this mother was a renowned web expert on parenting, with a popular Instagram account and YouTube channel. Her @moms_of_truth account on Instagram had 341,000 followers, and until it was mysteriously shut down last year, her “8 Passengers” YouTube channel (named after her, her husband, and their six kids)had a very profitable subscriber base of almost 2.3 million.

Ruby Franke, the wise and admired mom, was arrested and charged with two counts of aggravated child abuse in Ivins, Utah this week. A press release issued by the Santa Clara-Ivins Public Safety Department stated that on Aug. 30, 2023 “a report came into our dispatch center regarding a juvenile asking for help.” Franke’s son, 12, had “climbed out of a window and ran to a neighbor’s home,” according to the police booking affidavit. The boy asked the neighbor for food and water. “The neighbor observed duct tape on (the boy’s) ankles and wrists and contacted law enforcement. Upon arrival, law enforcement judged the boy’s wounds and malnourishment to be “severe.”

Funny, Ruby never discussed that child-rearing technique on the web…

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Officials And Leaders Who Conservatives Consider Essential Bulwarks Of Constitutional Government Really Have To Stop Relying On “The King’s Pass”

Take Clarence Thomas for example.

As with Donald Trump, who was the object of much rationalization here yesterday, Justice Thomas apparently is certain that conservative and Republican integrity don’t have the rigor to make him accountable for a truly staggering series of judicial ethics breaches. He is also apparently correct in this assumption.

Justice Thomas finally acknowledged publicly that he should have reported selling real estate at a suspicious profit to billionaire political donor Harlan Crow in 2014, a transaction disclosed by ProPublica earlier this year. The Crow company bought a string of properties for $133,363 from co-owners Thomas, his mother and the family of Thomas’ late brother, according to a state tax document and a deed. Conservative power-player Crow then owned the house where a Supreme Court Justice’s elderly mother was living—hey, no big deal!—and soon contractors began tens of thousands of dollars of improvements on the two-bedroom, one-bathroom home. Although a federal disclosure law requires SCOTUS Justices and other officials to disclose the details of most real estate sales over $1,000, Thomas never deigned to mention this convenient and inherently suspicious transaction. You know, that “appearance of impropriety” thingy?

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