“beyond a reasonable doubt”

Ethics Quiz: The Improper Jury Instruction

/ Jack Marshall / 27 Comments

At least a dozen Pennsylvania murder convictions may be reversed because Judge Renee Cardwell Hughes included this description of reasonable doubt to instruct her juries:

“Each one of you has someone in your life who’s absolutely precious to you. If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion. You may even ask for a third opinion. You’re probably going to research the condition, research the protocol. What’s the surgery about? How does it work? You’re going to do everything you can to get as much information as you can. You’re going to call everybody you know in medicine: What do you know? What have you heard? Tell me where to go. But at some point the question will be called. If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.”

U.S. District Judge Gerald McHugh ordered a new trial for a man convicted following this instruction, and Hughes may have used it in 50 cases.

This is why I am making this an ethics quiz: I have no idea why the instruction is wrong, or confusing. I’ve read McHugh’s opinion, and I still don’t understand what the alleged problem is, unless this judge just doesn’t want to anyone convicted. (He’s an Obama appointment, but I’m sure that has nothing to do with anything, for Chief Justice Roberts tells us so). The decision is here, and this the judge’s reasoning: Continue reading →

A Jumbo, And It WORKS! Double Standards, “Beyond A Reasonable Doubt” And The Judge’s “Toy”

/ Jack Marshall / 12 Comments

Here is a rare case where a Jumbo (as in Jimmy Durante’s desperate “Elephant? What elephant?” defense when caught stealing the biggest pachyderm alive in the Broadway show “Jumbo”) actually worked.

Judge Joseph Claps of Cook County, Illinois, was acquitted this week on a charge of carrying a concealed weapon into a prohibited area, reports the Chicago Tribune. 

You see, a gun, or what looked like a gun and sounded like a gun when it hit the floor appeared to fall out of Claps’ jacket when he was entering the courthouse. The judge was licensed to carry, but it is still illegal to bring a firearm into the building. Sheriff’s deputies testified they believed the object was a gun, but they didn’t intervene because they weren’t sure whether the judge was allowed to have the weapon, and because, well, he was a judge.

Did Judge Claps admit he screwed up and accept the consequences like a trustworthy, honest public servant? No! He went to trial, and allowed his lawyer to argue that prosecutors couldn’t prove the “object” was a gun. ( “Gun? What gun?”) Claps’ lawyer argued that the dropped object could have been a replica or a toy. “It could have been a cap gun,” Breen said. “It could have been a water pistol. It could have been a lighter, a cigar lighter. It could have been anything.” Anything that looked like a gun sufficiently to convince the security personnel that it was a gun. And really, we all know how judges sometimes carry water pistols and cap guns into court! Continue reading →

Morning Ethics Warm-Up, 3/17/2018: Mockingbirds, Headlines, And Reasonable Doubt

/ Jack Marshall / 25 Comments

Good Morning, Scout!

1 Assorted blog stuff. I’m going to have to fly to Boston next month for the hearing on my motion to dismiss the specious defamation suit against me by an Ethics Alarms  commenter to whom my responses were no more defamatory than what I have said to many of you when provoked…Every now and then some blog or social media participant with a huge following links to an old post here, and I am swamped with visits from a lot of individuals with no serious interest in ethics. They almost never comment, and if they do, the comments typically don’t meet my posting standards. Still, they swell the traffic stats, and I’ll take ’em. In 2017 I had none of these fluky hit avalanches, after a 2016 that had several. This time, the post suddenly drawing interest is a 2014 essay about a letter written to director Terry Gilliam in 2005. You just never know…Expect a lot of Comments of the Day this weekend: I am way behind, and I’m sorry. Tough week.

2. Keep hope alive! Yesterday’s New York Times front page headline perfectly embodied the fake news-by-innuendo tactic that has marked the mainstream media’s efforts to pander to the “resistance.” The Special Prosecutor’s fishing expedition just subpoenaed the business records of the Trump organization relating to its dealings in Russia. Says the Times headline: “Investigation nears President.” Ooooh! Scary!

Hype, and unprofessional. This is the “He’s getting closer! And closer!” narrative the anti-Trump journalists have been flogging for a year. Yeah, I guess any time an investigation involves someone’s business it is “near” the owner, but why would that obvious fact justify a headline?  The reality is that Trump’s organization had business dealings in Russia (legal and unremarkable), the fact that Mueller is looking does not prove or suggest that those dealings had any connection to the campaign, and Mueller could have asked for these records a year ago. There is nothing ominous about the request from the President’s perspective at all, unless, as this whole fiasco has presumed from the moment Democrats seized on Wikileaks and fake Facebook news as the designated excuses for Hillary’s inexcusable defeat, there really was “collusion.”

That an investigation has been launched does not imply, suggest, or indicate wrongdoing. The news media’s reporting continues to suggest otherwise because they want the President to be guilty of something heinous. Imagine that: there are Americans who want their elected President to be proven guilty of wrongdoing.

3. To kill a “To Kill A Mockingbird.”  Harper Lee’s estate filed a complaint last week in federal court in Alabama, arguing that a Broadway bound stage adaptation of “To Kill A Mockingbird” by “The West Wing” creator and “A Few Good Men” writer Aaron Sorkin violates a contract, between Harper Lee and the producers that stipulates that the characters and plot must remain faithful to the spirit of the book. (I wrote about the complexities surrounding Atticus Finch’s character in a 2015 post.) Continue reading →

Morning Ethics Warm-Up: 7/20/17

/ Jack Marshall / 63 Comments

Καλημέρα!

[This is pronounced “Kaliméra!,” not to be confused with “Calamari!” My father frequently got them confused when he visited Greece with my mom, the former Eleanor Coulouris, and embarrassed her by greeting the natives some mornings by cheerily saying, “Squid!“]

1. The newspaper Arts section headline says, “Mayor Ties Arts Money To Diversity.”

The mayor in question is New York City’s DeBlasio, and since his own family is “diverse,” naturally every other entity has to be, or it is baaaad. This is why I oppose government funding of the arts unless it guarantees that the nation, state or city will not attempt to use its support to control the arts organizations in any way.  Of course, governments will never do that, because manipulating the arts to advance  political agendas is usually the underlying motive in arts grants. Ideologues like De Blasio—wow, he’s terrible—will constantly be grandstanding and doing everything in their power to manipulate artists and their art to ensure that they send the “right” messages—you know, like Nazi art and Communist art. It is exactly the same theory and practice: art as political indoctrination.

Quick: who thinks that De Blasio will be focusing on “diversity” in the management (or on the website) of the Dance Theater of Harlem? Even if the government doesn’t attach strings to its support, arts organizations know that there are more of them than there is tax-payer money to disperse, so there is terrible and often irrsistable pressure to distort their product to give their state funders what the artists think they want—just to be safe.

My professional theater company refused to do that, sticking to the integrity of our mission and not resorting to tokens and virtue-signalling. My now defunct professional theater company, that is.

2. Yesterday, I highlighted the head-blasting comments of New York Times film critic A.O. Scott and his alternate-universe pronouncements about the Obama presidency. To be fair to A.O., his entire profession is packed with historical and political ignoramuses who make their readers dumber with every review. I once created a theater reviewer’s code of ethics, which I mailed to a critic, who sent it back to me with a note that said, “Mind your own business.” Years ago, I published an essay that was called “Why Professional Reviewers Are Unethical,” that began,

When Variety announced that it was firing its in-house film and drama reviewers, there was much tut-tutting and garment-rending over the impending demise of professional reviewing in magazines, newspapers and TV stations. The villain, the renders cry, lies, as in the Case of the Slowly Dying Newspapers, with the web, which allows any pajama-clad viewer of bootleg videos to write film reviews, and any blogger who cares to write a review of a play. “I think it’s unfortunate that qualified reviewers are being replaced,” said one movie industry pundit, “but that’s what’s happening.”

I say, “Good. It’s about time.”

It’s not happening quickly enough, though. “Dunkirk” is opening this week, and, as I predicted, film reviewers are showing their utter historical ignorance. The Washington Examiner skewers them deftly in an essay called “Why the (True) History of Dunkirk Matters.” Highlights, or rather lowlights:

  • USA Today critic Brian Truitt complains that “the fact that there are only a couple of women and no lead actors of color may rub some the wrong way.” He is not the only film critic to observe this.

Morons.

  • Slate.com critic Dana Stevens claims that the British Army at Dunkirk was the “last bulwark against Nazi invasion of the British mainland.”

Not even close to true. Continue reading →

The Disgraceful Exploitation Of Ken Bone, With This Ethics Note: Ken Is 100% Correct That Trayvon Martin’s Shooting Was Justified, While Journalists And Pundits Who Criticize Him For Saying So Are Big Lie Purveyors

/ Jack Marshall / 17 Comments

ken-bone

I’m glad I could clear that up.

Poor Ken Bone, the man in the red sweater who was chosen as a designated undecided voter to ask a question at the last debate, embodies Andy Warhol’s “15 minutes of fame” comment because, apparently, the news media has to come up with trivia to write about so it doesn’t have to inform the public about substance they actually need to know about. The perfectly unremarkable man chosen to ask a question at this fake “town meeting” should have been allowed to do his job and then go back to his normal life, but no. Silliness demanded that he be lionized and bestowed with celebrity status. Even the usually rational Jake Tapper got into the act, telling his viewers…

All day long, my staff and I, we’ve been pondering this important question, “What makes Ken Bone so awesome?” …Why do we all find him so charming? Is it the red sweater? That was actually his backup outfit after he says he split his pants to his olive-cover colored suit. Maybe it’s the mustache? Perhaps it’s the disposable camera he used to snap pics after the debate. Ken Bone’s name started trending online during the debate. Now, Mr. Bone is making the TV interview rounds. He told CNN earlier today about his new following on Twitter…. He’s even more awesome than ever, just watching that clip. [His Twitter following]  is more than 30,000 now, and the Ken Bone memes are everywhere. There’s Ken Bone with the 90s rap group, Bone Thugs-n- Harmony. How about the Ken Bone Halloween costume?

How about stopping the condescension and tongue in cheek mockery, Jake? Yeccch. It is nothing less than cruel to throw someone into the maw of celebrity like this, a throbbing neon target to social media bullies and the Twitter Furies who have nothing more productive to do in their mean, measly, pointless lives than mock, ridicule and attack a citizen who tried to participate responsibly in an irresponsible election. Now he is under national scrutiny for his clothing, his weight and his moustache. What is wrong with these people? Is the Golden Rule extinct?

Don’t blame Ken because he accepted invitations to appear on TV after his big moment. He’s never been a celebrity before. If he had done some research, he would have discovered that most ordinary Americans thrust into the celebrity machine come to regret it, but for him this is different, this is exciting, this is fun! He gets flown to places he’s never been, and put up at nice hotels, and treated like royalty. Some ad agencies will try to recruit him for a disposable commercial or two: who turns down money? Who turns away from their 15 minutes, if it comes? Would you? We can’t blame him, because he is a good person, and good people often make the dangerous mistake of assuming that the people they deal with, like the news media are also good people. Unfortunately, they cannot be trusted.

Thus what has happened to Ken Bone was completely predictable. Having been built up by irresponsible journalists like Tapper into something he never asked to be—National Puppy of the Month would be a good name for it—it was inevitable that other irresponsible journalists would see cheap columns and clicks from tearing Bone down. Even though Bone had told the media that he was leaning toward voting for Clinton, vicious  progressives—the mistreatment of Ken Bone comes entirely from the left—dissected his comments when he  participated in an “Ask Me Anything” forum on  Reddit, using them to denigrate him. They also went back to check other statements he had made on the site. What they found was virtually nothing; I find myself imagining what these cruel, unethical people would do with everything I’ve written online. Never mind: it was enough. In response to “Truth or Dare” style questioning, Ken…

  • Admitted that he watched porn and peeked at Jennifer Lawrence’s nude photos when they were hacked.
  • Admitted to forging insurance documents so that he could keep a pizza delivery job. This, despicably, was headline on some sites as “insurance fraud.” It is not insurance fraud. It is lying. Insurance fraud occurs when someone collect insurance payments based on false representations, not when someone falsely claims to be insured.

“Worst of all,” we were told, and thus most publicized of all, Bone opined months ago that Trayvon Martin’s shooting was “justified.”

The Horror.

It is part of the current politically correct narrative to keep Black Lives Matter from being properly recognized as the racist propaganda organization that it is for the progressive community to preserve and protect the Big Lie that George Zimmerman murdered Trayvon Martin because he was black. The lie persists on liberal websites; it was enabled at the Democratic National Convention when Martin’s mother was allowed on stage in a mass pander to the victims of police shootings; it is advanced every time Martin’s name is included in the litany of young black men supposedly killed by a “systemic racism.” Whatever other cases may show, Trayvon Martin’s death only stands for racism and murder because unscrupulous, dishonest, and on occasion ignorant activists, politicians and journalists want it to.

There has never been any evidence that George Zimmerman profiled Martin, who was a stranger walking through a gated community at night. MSNBC even altered a 911 tape to make it sound like this was the case, and a Big Lie was born. There has never been any evidence that prior to the tragic encounter, Zimmerman had  expressed racist views. The evidence that is available shows that Martin confronted Zimmerman, not the other way around. Finally, investigators established that Zimmerman was being beaten by Martin and reasonably felt in mortal danger when he shot the teen. Those are the facts, and based on those facts, a jury properly acquitted Zimmerman of murder applying the doctrine of self-defense, which made the death of Martin a legally justified killing under Florida law and all criminal law going back centuries. Bone’s comment on Reddit…

bone-tweet

…is entirely accurate, fair, and reasonable. Continue reading →

Leading Candidate For Most Unethical Opinion Column Of 2016: Daily Beast Editor Goldie Taylor

/ Jack Marshall / 23 Comments

Ox-Bow-still-3

How a major U.S. news and public affairs website can produce an article like Daily Beast Editor-At-Large Goldie Taylor’s is a fertile subject for inquiry, as is the question of how much the ignorant, un-American, values-warping assertions it contains are reinforced throughout our rising generations’ education and socialization. Those investigations must wait for another day, when I have the stomach for it.

For now, let’s just consider what Taylor wrote. It is titled “Six Baltimore Cops Killed Freddie Gray. The System Set Them Free,” an unethical headline that kindly warns us regarding the awfulness to come. No, six Baltimore cops did not kill Freddie Gray, as far as we, or the system, knows based on the evidence. That Taylor would state such an unproven and unprovable statement as fact immediately makes her guilty of disinformation, and shows that she is willfully ignorant of the principles of American justice, as well as too hateful and biased to comprehend them. Damn right the system set them free. That’s because in the Freddie Gray cases the system worked spectacularly well, despite the best efforts of an incompetent and biased prosecutor to make it do otherwise.

And that was just the title. The rest is infinitely worse: if you are feeling sturdy, read it all here. If not, the selected highlights (lowlights?) to follow will suffice.

Taylor wrote early on, Continue reading →

A Federal Court Reinstates Tom Brady’s Suspension For Cheating

/ Jack Marshall / 27 Comments

Good.

What Brady doesn't get: When people think you cheated, the smirk is does as much damage as the conduct.

What Brady doesn’t get: When people think you cheated, the smirk is does as much damage as the conduct.

The U.S. Court of Appeals for the Second Circuit appeals court reinstated the NFL’s four-game suspension of New England Patriots quarterback Tom Brady yesterday. This overturned last year’s ruling by U.S. District Judge Richard M. Berman, who had nullified the league’s suspension of the superstar quarterback. The three-judge panel of the appeals court wrote…

“We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness.”

It is important to note that the Court only ruled on whether NFL Commissioner Roger Goodell had the power to suspend Brady and did not violate the player’s rights as a players union member by doing so. The NFL’s current deal with the players gives Goodell the kind of power Major League Baseball gave to its first commissioner after the 1919 Black Sox Scandal, when gamblers fixed the World Series. Goodell, like Landis, can use his discretion to punish a player for “conduct detrimental” to the game and the NFL. They did this because a disturbing number of NFL players were getting headlines for doing things that don’t comport with what the public expects of its paid heroes, like sucker-punching women, shooting people, getting in bar fights, and engaging in assorted felonies. The game also has a very successful coach, Brady’s coach, in fact, who has made it very clear that he will cheat whenever he can get away with it..

I’m not going to rehash the “Deflategate” incident: I wrote enough about it when it occurred. Nobody knows for certain if Tom Brady in fact did conspire with Patriots employees to cheat when his team was behind in a crucial play-off game, but we know this: Continue reading →

The Ethics Verdict On Rep. Polis’s Apology For Recommending That Students Be Expelled For Sexual Assaults They Probably Didn’t Commit

/ Jack Marshall / 13 Comments
Apparently the demon Pazuzu and the Congressman from Boulder agree!

Apparently the demon Pazuzu and the Congressman from Boulder agree!

My rule: if you say something clearly and unequivocally with all the available evidence and defend it later in another forum, all your subsequent apology means is “Gee, I didn’t expect to get in so much trouble for that. I guess I better apologize and pretend I didn’t realize what I was doing.”

Rep. Polis of Colorado, a Democrat and clearly no student of American justice, inherited the wind with his statements in a Congressional hearing suggesting that the already manifestly unjust “predominance of the evidence standard” that the Obama administration forced on universities (you know, so women could get as many male students punished as sexual predators as possible) was too fair. First he said…

“I mean, if I was running [a college] I might say ‘well, you know, even if there’s a 20 or 30 percent chance that it happened I wouldn’t want … I would want to remove this individual. Why shouldn’t a private institution, in the interest in promoting a safe environment, use an even lower standard than a preponderance of evidence, like even a reasonable likeliness standard?”

Then he said…

“I mean, if there’s 10 people that have been accused and under a reasonable likelihood standard maybe one or two did it, seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about their transfer to another university.”

Later, interviewed over the phone by Reason well after the hearing, Polis was unambiguous, and extensively defended his statements in the hearing, with no equivocation or doubt. Ah, but he did not expect so many publications, pundits, bloggers and ethicists to have such an adverse reaction to, you know, discarding due process, fairness, and basic principles of justice just to make the Democratic Party’s man-hating feminist base happy. So he apologized.

Absurdly.

He began with the Full Pazuzu: Continue reading →

The Last Of Deflategate, And What It Means

/ Jack Marshall / 27 Comments

New England Patriots quarterback Tom Brady speaks at Salem State University in Salem, Massachusetts, May 7, 2015. REUTERS/Charles Krupa/Pool ORG XMIT: BKS06

I have received a lot of mail seeking my reaction to a judge reinstating Tom Brady and vetoing Roger Goodell’s harsh punishment decree. My reaction is that this is bad for football, the NFL, and the culture, and one more step toward validating cheating as an accepted cultural norm, not just in sports, but in the nation itself. Once upon a time, sports were supposed to model good sportsmanship, integrity and fairness. This episode demonstrates how far from that we have come. It is a serious and troubling development.

From a legal standpoint, I get it. I assumed that Goodell knew the limits on his own power: silly me. Apparently the NFL’s labor deal neutered the absolute power of a Commissioner to do what he felt was necessary to protect the integrity of pro football. Unions seldom care about the integrity of their game, at least not when their members’ money is involved. The original sports league commissioner, baseball’s Judge Kenesaw Mountain Landis—Damn! Why didn’t we name our son “Mount McKinley Marshall”?—banned Shoeless Joe Jackson and his team mates from baseball forever after a jury had acquitted them of throwing the World series for bribes. His drastic action probably saved baseball, and has influenced the sport to this day. Goodell’s failure, in contrast, promises to do lasting harm.

Remember, the judge didn’t exonerate Brady; he just ruled that Goodell didn’t have the power to punish him. There is no doubt in my mind that Brady cheated, just as there was no doubt in the NFL’s investigator’s mind. There is also no doubt that you could not prove Brady’s guilt beyond a reasonable doubt. The idea behind absolute power in a sports commissioner is that sports contests must be viewed as being fair or people will stop watching, and any hint of cheating and corruption must be banished. I agree with that idea. Baseball flunked its most crucial recent test when Bud Selig didn’t have the guts to pull Barry Bonds off the field when he was breaking records on steroids (and everyone knew it); pro football has been flunking one test after another. Society is becoming more cynical and more tolerant of cheating, and I think professional sports are as much a cause as a symptom.

Why am I convinced Brady cheated? Many factors, none of which individually are conclusive:

  • The conditions under which the cheating took place: bad weather, a play-off game, the team behind.
  • The Patriots’ well-established contempt for the rules.
  • The fact that a quarterback knows the feel of his tool, footballs, and that an experienced one like Brady could not possibly have been unaware that the balls he was throwing were even a little bit underinflated.
  • Brady’s evasive, smug, wink-wink ha-ha demeanor in multiple venues regarding the incident, like a high school jerk who knows he’s getting away with something and thinks its hilarious.
  • The immediate “everybody does it” defense from Brady’s fellow quarterbacks. (That’s not a defense. That’s an admission.)
  • The “it didn’t matter, they would have won anyway” defense from the same quarters. This is also an admission of cheating. Cheating is wrong whether it works or not, and whether it is necessary or not. NFL fans don’t even know what’s wrong with cheating any more….because the players don’t.
  • Some of the absurd defenses raised by Brady’s defenders, including his team, like the argument that one of the equipment guys involved in the incident was only called “the Deflator” in a contemporaneous text message because he was on a diet.
  • The fact that Brady destroyed his cell phone to avoid its contents being searched. This is spoliation, the destruction of potentially incriminating evidence, and suggests, but doesn’t prove, guilt. If he had done it in a criminal investigation, it would have been itself a crime. Ethically, the act is just as wrong whether it is a crime or not. (See: Clinton, Hillary)

I believe most Patriots fans know he cheated too. They just don’t care: he’s their star, and the team won the Super Bowl. The ends  justify the means. Continue reading →

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 →