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?

Continue reading →

Oh, Good…A Non-Political Reason To Avoid Saturday Night Live

/ Jack Marshall / 9 Comments

Sanz and Fallon

It’s a sad truth, at least for me: the more you know about comedians and comics, the harder it is to laugh at them. There are notable exceptions of course (and as always): Martin Short, John Candy, Carol Burnett and a few more apparently are or were genuinely nice and relatively normal human beings. As a rule, however, extraordinary comedy talent is nourished by misery and emotional pain, and misery and emotional pain have a strong tendency to produce broken, sick, untrustworthy people.

For a lot of audience members, this isn’t a problem. For me, it is. I love great comedy, I’ve directed comedies, I’ve written comic scripts, revues, parodies and essays, and I’ve performed comedy. But once I learn that a comedy genius was or is a horrible human being, or acts like one sufficiently frequently not to be trusted, I just don’t enjoy watching and listening to that performer any more. The list of those who have landed on my “Can’t Make Me Laugh List” is too long to compile, and I really don’t care to encourage debates about whether it should matter that Charlie Chaplin was sexually attracted to little girls, or that Danny Kaye was a cruel misanthrope. It matters to me.

There are a few compensating advantages of this mindset, though. I haven’t watched a single minute of Saturday Night Live for so long I don’t even remember exactly when I started finding the show repugnant after years of never missing an episode. The reason I stopped watching was the show’s increasingly smug political bias that began to swallow the satire whole. I know it was somewhere around the George W. Bush presidency. (I had a similar experience then with David Letterman and The Daily Show.) SNL’s conversion into a full-time shill for progressives and Democrats became especially nauseating when it became addicted to using left-wing thug Alec Baldwin as a guest. There is no one on Earth I hate enough to find Alec Baldwin mocking him or her funny, and when it comes to Baldwin’s Trump impression, only the biases of Saturday Night Live directors and audiences can explain its popularity. As a director, I’d consider his amateurish routine unacceptable in a Cub Scout skit.

Fortunately, a recent emerging scandal looks like it will give me a new reason to detest the show that has nothing to do with politics.

Continue reading →

Saturday Afternoon Ethics Breezes, 8/14/2021: Weenies, Suckers And Fools

/ Jack Marshall / 6 Comments

1. Ethics Quote of the Week? I’d say it’s rebel progressive and former Rolling Stone pundit Matt Taibbi in “The Vanishing Legacy of Barack Obama.” (Of course, Obama’s real legacy, toxic racial division in America, hasn’t vanished at all, more’s the pity.) Taibbi writes,

“Obama was set up to be the greatest of American heroes, but proved to be a common swindler and one of the great political liars of all time — he fooled us all. Moreover, his remarkably vacuous post-presidency is proving true everything Trump said in 2016 about the grasping Washington politicians whose only motives are personal enrichment, and who’d do anything, even attend his wedding, for a buck. Trump’s point was that he, Trump, was already swinishly rich, while politicians have only one thing to sell to get the upper class status they crave: us. Obama did that. He sold us out, and it’s time to start talking about the role he played in bringing about the hopeless cynical mess that is modern America.”

Were Matt and his fellow progressives really fooled that badly? Wow. Times Queen of Snark Maureeen Down, like Matt writing about Obama’s deliberately offensive birthday bash, what Taibbi calls his “Fuck it moment,” writes,

“The party crystallized the caricature of the Democratic Party that Joe Biden had to fight against in order to get elected. It was as far from Flint and Scranton as you can imagine: an orgy of the 1 percent — private jets, Martha’s Vineyard, limousine liberals and Hollywood whoring — complete with a meat-free menu. The disinvitados, as one referred to them, were in four camps: Some didn’t care; some pretended they didn’t care; some were annoyed; and some were deeply hurt, especially loyal former staffers who felt they had contributed more to the Obama legacy than the likes of George Clooney, John Legend and Don Cheadle.”

Continue reading →

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.

Continue reading →

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.

Continue reading →

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.

Continue reading →

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.

Continue reading →

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.

Continue reading →

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.

Continue reading →