Professions

From The “I Told You So” Files: Judge Kopf Finally Decides To “STFU”

/ Jack Marshall / 1 Comment
There go de judge!

There go de judge!

Last year, I wrote a post about the intemperate blogging of Judge Richard G. Kopf, a senior district court judge on the U.S. District Court for the District of Nebraska. Actually intemperate doesn’t quite describe it: in his criticism of the Supreme Court’s decision in the Hobby Lobby case (the Ethics Alarms discussion is here) he wrote, “As the kids say, it is time for the Court to stfu” and linked to the Urban Dictionary so his less cool readers would take his meaning. I wrote:

That he did this on his blog, Hercules and the Umpire, doesn’t matter. It was in print, in public, and he’s a Federal judge. The obscenity came in the context of Judge Kopf’s criticism of the recent Hobby Lobby decision, but the context doesn’t matter either. There is no context in which it would be appropriate, judicial and ethical for a member of the judiciary to tell the Supreme Court of the United States to shut the fuck up. Nor does it matter that he used the texting code stfu rather than spelling out the words.

For a Federal judge to be openly disrespectful, uncivil and abusive to the top of the nation’s judicial branch is an assault on the rule of law, and undermines public respect for our institutions…. If the objective is to speed a complete breakdown in public respect for our institutions, divisive partisans like Kopf  and Wilson are doing a bang-up job. Neither they, nor you, nor I will like where this will lead if our leaders and officials don’t come to their senses.

This post, of all posts (I don’t think my position is rationally assailable, frankly) managed to get three commenters banned from the blog, essentially by 1) arguing that the Roberts Court doesn’t deserve the usual respect due to any court, and 2) telling me to “stfu.”  All were Judge Kopf acolytes who weren’t going to stay here to contribute anything positive, just uncivil, arrogant progressive lawyers who the judge-blogger had trained well.

Last month, a year after his obscene riff on SCOTUS, Kopf slipped again, writing that  “Senator Ted Cruz is not fit to be President.” The post wasn’t obscene; in fact it was  funny: Kopf, who had a year earlier condemned the Supreme Court for bias, argued that Cruz was not fit to be President because…

“Any rational person understands that we must accept decisions we like and decisions we don’t like when we ask the highest Court in the land to decide difficult hot button questions for an entire country. Judicial retention elections are fine for Nebraska and all the other states that have developed unique and parochial histories and traditions. However, we are talking about a federal Constitution–one that protects and covers 320 million people from Maine to Hawaii. Given the fractious divisions in our country that exist now (and many times in the past) and the obvious geographical fissures among the states (Red State/Blue State), judicial retention elections, fueled by whether a majority likes or dislikes particular Supreme Court rulings at a given point in time, is a formula for chaos and for further dividing our country into factions, a well placed fear held by the Founders.”

Wait…who is this guy? Surely he bears no relation to the sneering, potty-mouthed anti-Supreme Court critic I wrote about the last time? Continue reading →

Clarence Darrow, in 1926, On Why Black Lives Matter

/ Jack Marshall / 9 Comments
The all white Detroit jury that acquitted Dr. Sweet.

The all white Detroit jury that acquitted Dr. Sweet.

When I referred to Clarence Darrow’s support for terrorist John Brown in the previous post, I reviewed other references to the great trial lawyer that have appeared here. (As you may know, I authored a one-man play about Darrow, still performed to legal groups by actor (and my friend) Paul Morella, and with historian Ed Larson compiled selections from Darrow’s writings, court appearances and speeches, The Essential Words and Writings of Clarence Darrow.) I have also posted on his famous Leopold and Loeb argument against capital punishment, but I was shocked to find out that I never posted any part of his closing argument in the murder trial of Dr. Sweet.  I need to remedy that omission now. That courtroom oratory is not only the best of Darrow’s closing arguments, but also the most relevant to current events. It is a masterpiece, and  also astonishingly prescient and wise.

In 1925, Dr. Henry Ossian Sweet, a black man, moved his family into a house in a previously segregated section of Detroit. Mobs of whites gathered outside the house with torches, clubs and guns the first two nights of their residence, as police stood by passively. On the second night, a gunshot coming from the house killed one of the demonstrators, and all 11 residents of the home, including Dr. Sweet, were charged with murder. The National Association for the Advancement of Colored People hired Clarence Darrow to handle the defense.

There were two trials, the first ending in a hung jury. In the second, Darrow performed a seven hour closing argument, aspects of which have inspired homages in “To Kill A Mockingbird” and “A Time to Kill.” Despite the all-white jury, Dr. Sweet was acquitted, and the charges against the others were dropped. Darrow isn’t a legend for nothing.

I have left out the parts of the closing argument that recount the testimony and the facts of the case: you can read about the trials on Doug Linder’s excellent website, and you can read Darrow’s whole closing here. This redacted version focuses on Darrow comments about race and race relations. It is longer than the version we used in the play, but this is the version I would have used if audiences could tolerate a three hour one man show.

I continue to believe that this was the high point of Darrow’s incredible career, and also one of the most impressive—and gutsy—speeches in our history. Only Clarence Darrow would challenge an all-white jury like this in 1925. It is also unbearably moving. Paul, when he performs the selection, ends with tears streaming down his face, as Darrow did. You might too. Try reading it aloud to your kid. Or to yourself.

This post also relates to another recent post, the one about jury nullification. That is really what Darrow is arguing here, in the context of confronting racial injustice and bigotry for the survival of the nation and society. The white victim of the shooting was shot in the back. Darrow, at one point, calls it murder himself. Nonetheless, he argues that acquitting Sweet and his family is the right thing to do, whatever the law says.

Here is my abridged version of the epic closing argument made by Clarence Darrow, May 11, 1926, in defense of Dr. Sweet and his family.

Continue reading →

Disrespect And Assault In The Operating Room: Our Nightmares Are Real

/ Jack Marshall / 30 Comments

clown-in-the-operating-room

“A few moments later, the anesthesiologist walks in the room and asks, ‘What do you got?’ Dr. Canby says, ‘Vaginal delivery. Uterine atony. External massage failed. Give her some ketamine.’”…I look at Mrs. Lopez—her eyes are half-closed and vacant. Dr. Canby instructs me to hold her knee. A fellow medical student holds her other knee….Canby then performs an internal bimanual uterine massage. He places his left hand inside her vagina, makes a fist, and presses it against her uterus. I look down and see only his wrist; his entire hand is inside her. Canby puts his right hand on her abdomen and then massages her uterus between his hands. After a few minutes, he feels the uterus contract and harden. He says something like, ‘Atta girl. That’s what I like. A nice, tight uterus.’ And the bleeding stops. The guy saved her life…But then something happened that I’ll never forget. Dr. Canby raises his right hand into the air. He starts to sing ‘La Cucaracha.’ He sings, ‘La Cucaracha, la cucaracha, dada, dada, dada-daaa.’ It looks like he is dancing with her. He stomps his feet, twists his body, and waves his right arm above his head. All the while, he holds her, his whole hand still inside her vagina. He starts laughing. He keeps dancing. And then he looks at me. I begin to sway to his beat. My feet shuffle. I hum and laugh along with him. Moments later, the anesthesiologist yells, ‘Knock it off, assholes!’ And we stop.”

This is an operating room anecdote related in an anonymously authored article published this week in the Annals of Internal Medicine, a respected medical journal. The publication says that the piece is intended to shine light in a dark corner of the medical profession. Oh-oh. The essay is anonymous, I assume, because the author is afraid that there would be professional repercussions from his revealing this—what? Bad habit? Dirty secret? Crime? Reason for us to go stark, raving mad? Continue reading →

The Cake And The Clerk: If Living In A Pluralistic And Democratic Society Offends You, It May Be Time To Find Another One

/ Jack Marshall / 239 Comments

Davis Protest

The kicking and screaming of the anti-gay marriage bitter-enders is becoming a national embarrassment, especially since some of the Republican Presidential candidates can’t seem to resist pandering to them. The social contract in a democracy involves accepting where the system decides to go and following along to the extent the law requires. If we don’t like a law, or a war or a government program, we are free to complain and to try to get them changed, or to pay the price for defying the law as part of the contract. We may not unilaterally declare that the law doesn’t apply to us. No, not even if we think God agrees. He’s not a party to the contract.

This is straightforward and clear. The ethics of citizenship requires it. Two current situations that have had significant developments in recent days illustrate the principle in the breach of it.

The Cake.

Jack Phillips, who is yet another Christian cake baker, lost an appeal that asserted that he had a First Amendment right to refuse to provide a cake for a gay couple to celebrate their wedding. Continue reading →

Lowe’s, The Rights Of Racist Customers, And Why Lawyers and Doctors Aren’t Like Deliverymen

/ Jack Marshall / 19 Comments
Now, if Lowe's drivers had law degree's, this would be a different story....

Now, if Lowe’s drivers had law degree’s, this would be a different story….

A fascinating story unearthed by master ethics sleuth Fred:

In Danville, Va., a customer specifically asked that a Lowe’s delivery be administered by delivery personnel who was not an African American. Marcus Bradley, the black driver assigned to the delivery, was called back to the store, and replaced. When the woman who made the request was interviewed, she said, “I got a right to have whatever I want and that’s it…No, I don’t feel bad about nothing.”

For hiss part, Bradley said that he was surprised that the store didn’t stand up for him, but that he would stay in his job. “I mean I gotta work. I’m going to keep going to work like I’ve always done. But I would think Lowe’s would take it into consideration to think about what they’re doing next time,” he said.

Lowe’s corporate office, when informed about the incident, released a statement that said in part… last week, and they said they’d look into it. Wednesday, we received this statement: Continue reading →

Interview Ethics: CNN’s Alisyn Camerota Shows Why News Anchors Need Training In Basic Ethics, Not To Mention Journalism Ethics

/ Jack Marshall / 40 Comments

Alisyn

This morning, as I rush to get my act to together to fly, sick, to Rhode Island where the bar will allow me to teach ethics to its members in the first two of three planned seminars, I made the mistake of checking in on CNN’s New Day to see what trouble Chris Cuomo and Alisyn Camerota could get themselves into. Sure enough, there was Allison interviewing Oklahoma Senator Jim Lankford regarding Republican efforts to de-fund Planned Parenthood over the revelations of the surreptitiously taken “sting” videos showing various Planned Parenthood personnel seeming to haggling over the prices for tiny little human organs successfully harvested from embryos whose tiny wittle heads have been crushed juuuust right. These individuals discuss unborn human beings with the sensitivity a normal person bestows on a Jimmy Dean sausage, but Planned Parenthood acknowledges that they need to practice a more pleasant tone in case somebody who cares about these inhuman organ bags is listening.

Is that an unfair characterization?

Let me know why you think so.

But I digress…

Camerota’s questioning demonstrated in multiple ways just how ethically ignorant the highest levels of our broadcast journalism are: Continue reading →

Hiroshima Ethics And The Washington Post’s Misleading “Five Myths” Feature

/ Jack Marshall / 51 Comments

Atom bomb cloud

The Washington Post’s Sunday “Five Myths About…” feature is a weekly irritation, as it begins with a misleading definition, and proceeds to a series of dubious and sometimes dishonest conclusions. In spirit it is like the fact-checking columns,  (though, ironically, the Post’s less than most) in that it claims to “disprove” opinions. This week’s installment, however, was too much.

Gregg Herken was this week’s guest bloviator, and the Post gave the emeritus professor of U.S. diplomatic history at the University of California a chance to plug his books on the atomic bomb, so I don’t blame him for taking it. I do blame him for allowing the column’s format and the editors to turn what could have been informative and edifying into lazy scholarship, sophistry, and nit-picking. Now I don’t want to read his books.

His entry was called “Five myths about the atomic bomb.” As is typically the case, no myths were debunked. Myths, in the parlance the Post is evoking, are a “traditional stories of ostensibly historical events that serve to unfold part of the world view of a people or explain a practice, belief, or natural phenomenon.” They are, by definition, false. Herken, however, neither identifies nor disproves any true myths. What he does is offer contrary opinions to those of others that are as provable as true as the opinions he claims to be debunking, which is to say, not provable at all. That means that the headline/title states an unprovable assertion as fact: “These statements are untrue.” Herken cannot ethically say that, but he does anyway.

Bad historian. Bad.

Herken starts off well:

“On Aug. 6, 1945, the United States dropped an atomic bomb on the Japanese city of Hiroshima. Another bomb fell Aug. 9 on Nagasaki. Decades later, controversy and misinformation still surround the decision to use nuclear weapons during World War II. The 70th anniversary of the event presents an opportunity to set the record straight on five widely held myths about the bomb.”

His first myth is that “The (Hiroshima) bomb ended the war.” Continue reading →

When Law Co-Opts Ethics: Florida’s Unconstitutional Pro-Gun Doctor Gag Law Upheld

/ Jack Marshall / 75 Comments

Unbelievable!

“See doc? That’s what you get for shooting your mouth off! Get it?”

A federal appeals court this week upheld an NRA-crafted Florida law making it illegal for doctors to ask questions and record information about a patient’s gun ownership. Medical groups had challenged the law, arguing that it infringed on doctors’ First Amendment rights.

Which it does. The law is an outrageous incursion on free speech in order to protect gun owners from unwelcome anti-gun lobbying by their physicians.

Among other restrictions, the law says doctors must refrain from asking about gun ownership by patients or family members unless the they believe in “good faith” that the information is relevant to medical care or safety. It also prevent doctors from discriminating against patients or “harassing” them because of owning firearms, which presumably means that it is illegal for a doctor to tell a patient, “You’re too clumsy to own a gun, and if you blow your damn face off, don’t come crying to me.”

“The purpose of the act, as we read it, is not to protect patient privacy by shielding patients from any and all discussion about firearms with their physicians; the act merely requires physicians to refrain from broaching a concededly sensitive topic when they lack any good-faith belief that such information is relevant to the medical care or safety of their patients or others,” said the 2-1 majority opinion, written by Judge Gerald Tjoflat and joined by Judge L. Scott Coogler.

Dissenting Judge Charles Wilson argued that the law violates the First Amendment rights of physicians:

“Simply put, the act is a gag order that prevents doctors from even asking the first question in a conversation about firearms. The act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic and one topic only, firearms.”

I don’t see how anyone can dispute that analysis. I especially don’t see how the other two judges dispute it.

Doctors shouldn’t use their position of influence to try to impose their political, social and life-style views on patients. If the American Medical Association wants to declare that to be an unethical abuse of a doctor’s status and a patient’s trust, I wouldn’t complain. The law, however, has no more business telling doctors that they can’t advise their patients that owning guns may be bad for their health or their neighbor’s health than it has making it illegal for doctors to tell patients that Donald Trump is just what this country needs in the White House. What’s next, telling dentists that they can’t tell you about their brilliant kids while they’re poking around your mouth?

The state doesn’t have to get involved in what patients and doctors talk about, shouldn’t, and mustn’t. This is a job for ethics, not law. If a doctor won’t stop telling you that the Second Amendment should be repealed, the remedy is easy: tell him to shut up, or you’ll find a new doctor.

Or just shoot him.

Kidding.

_____________________
Pointer: Legal Ethics Forum

Legally Competent, Ethically Bankrupt: The Zealous, Despicable Monique Pressley, Esq.

/ Jack Marshall / 53 Comments

cosby-women-new-york-magazine-w724

Bill Cosby’s lawyer Monique Pressley decided to become a hybrid attorney-publicity agent yesterday, and in doing so provided an impromptu seminar on why people hate lawyers, and often should. She was carefully spinning and dissembling on behalf of her client without breaching the ethics rules against lying, parsing words and phrases with skill and deftness, all in the service of a serial sexual abuser and perhaps the greatest hypocrite pop culture has ever produced.

Brava!

Also, Yeeccch!

The impetus for her media spin tour, for that is all it was, is the New York magazine issue that features the stories of 35 of Cosby’s accusers. First Pressley told CNN’s Ashleigh Banfield that the women were comparable to a lynch mob: Continue reading →

Ethics Quiz: A Minimum Wage Lecture Instead Of A Tip?

/ Jack Marshall / 36 Comments

Diners and bar patrons in Seattle are apparently registering their displeasure over the city’s whopping minimum wage hike (to $15 an hour) by leaving this card instead of a tip:

why-i-dont-tip-in-seattle

Your Ethics Alarms Ethics Quiz:

Is this an ethical protest?

My view?  There are minimum wage employees in bars and restaurants, but waiters and bartenders often aren’t among them. In the case of the bartender who publicized this patron’s printed rant, we learn, he is not a beneficiary of the minimum wage increase, and his livelihood depends on tips.

A tip, as Ethics Alarms has stated before, should be based on quality of service. To withhold a tip from a server or bartender—which should be message about service—to register an objection regarding the city’s wage statutes is neither logical nor just. Among the card’s three options, the first is completely reasonable, the second is a necessary consequence of living in a democracy, and the third is just behaving like a jerk. I bet the guy that left this card kicks his dog after a bad day too.

___________________

Pointer: Fred