Prosecutorial Ethics: Not Charging The Police In The Eric Garner Case Is The Right Ethical Decision…

…and trying any of the officers involved would be unethical.

Naturally, Eric Garner’s family immediately is attacking  the decision of the Justice Department today not to bring federal charges against  the New York police officers whose ugly and violent arrest of Eric Garner in 2014 led to his death. This incident came in the midst of several high-profile police shootings following the triggering Trayvon Martin killing, and led directly to the emergence of Black Lives Matters as well as launching one of several catch phrases connected with the movement, “I can’t breath.”

The Department of Justice took a long time reviewing the incident and the evidence, and could not determine that Officer Daniel Pantaleo willfully committed misconduct, an “essential element necessary to bring federal charges,” a senior department official told reporters at a briefing today. Considering all the elements of the  crime required to be proven under the law, the DOJ official said, the conclusion was that  the police conduct did not “fit within the statute.”

In deciding not to bring charges, U.S. Attorney General Bill Barr sided with federal prosecutors in Brooklyn. The  Justice’s Civil Rights Division had favored bringing charges.

The main problem facing the Justice Department and the New York prosecutors was that a conviction would be unlikely, making a prosecution more of a show trial than a real one, much like the George Zimmerman trial for allegedly murdering Martin. That trial was brought unethically to slake activist thirst for vengeance against Martin’s shooter, despite the glaring  evidence indicating self-defense. Prosecutors may not use the process itself to punish citizens. If a trial can’t be won, or if the justification for charges are dubious, then it is professional misconduct to bring them.

Were police negligent and reckless in using such aggressive measures to bring down a suspect who was resisting arrest? Absolutely, and this was addressed, as it should have been, in a civil trial. (Garner’s family was awarded 4 million dollars from the city.) Did the cops intend to kill Garner? It takes real anti-police bias to conclude that. The video shows a huge, morbidly obese man resisting arrest by a group of much smaller officers, who pretty evidently over-reacted. Although the ME attributed Garner’s death to “compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police,” the defense in a criminal trial will have no trouble finding persuasive expert testimony to the effect that what ultimately killed Eric Garner was his weight and poor health. Continue reading

Week-Opening Ethics Warm-Up, 5/20/2019: On Life Competence, Gender Math, Lying Stars, And Civil Rights Legislation That Isn’t As Good As It Pretends To Be

Ah, Monday…

1. Weekend Update: I am going to make a habit of flagging what I consider important issues from the weekends on Monday, since from late Friday to the end of Sunday these days, Ethics Alarms is populated by just a handful of stalwarts and tumbleweeds rolling down the deserted information super-highway. This time, I point your attention to…this.

2. Today’s baseball ethics note: Yesterday, the falling New York Mets lost their second straight game while getting less than three hits (that’s bad, for those sad members of you  who don’t follow baseball) in part because their recently acquired superstar, Robbie Cano, didn’t run hard to first base to try to avoid hitting into a double play. This, in turn, has placed the continued employment of Mets second year manager, Mickey Callaway, in jeopardy, as loafing players on losing teams always will. This is the Star Syndrome (or Rationalization #11, the King’s Pass) in operation: if Cano gets to do what lesser players would be fined, benched or released for doing, then the double standard threatens team unity and respect for the manager.

Cano’s excuse was that he thought there were two outs when there was really only one, because the scoreboard was wrong. A player is supposed to know the number of outs without having to check the scoreboard, but now photo evidence seems to show that the stadium scoreboard was correct, and showed only one out.

Oh-oh. Continue reading

Ethics Hero Emeritus: Canada Lee (1907-1952)

I bet you have never heard of Canada Lee.

Most Americans, even black Americans haven’t, yet he was a remarkable, talented and courageous black man who made a difference in our history and our culture against daunting challenges. He should have been entered into the Ethics Alarms Heroes’ Hall of Honor long ago. This post will remedy that slight.

He was born to West Indian parents (and thus cannot accurately be called an “African American”) and named Lionel Cornelius Canegata on March 3, 1907 in New York City’s San Juan Hill district. A musical prodigy, Canegata studied the violin at the age of seven, and by the age of twelve was playing concerts.  The compensation was sparse, however, so when he was 14, Canegata ran away to the Saratoga Race Track in upstate New York to become a successful jockey until he grew too tall for the job and became a horse exerciser for prominent racehorse owners. Once more seeking a path out of persistent poverty, Canegata changed course again, and set out to become a boxer.

He won 90 of 100 fights,  the Metropolitan Inter-City and Junior National Championships, and the national amateur lightweight title. Before one match, an announcer butchered his name, and Canegata somehow became‘Canada Lee.’ Lee liked it and kept it.

In 1926, Canada Lee turned professional, and by 1930, he was a leading contender for the welterweight championship. Lee fought in over 200 fights as a professional boxer, losing only 25.  Fate intervened with that path: a punch to the right eye detached his retina, and ended his boxing career just as it was getting promising and profitable.  Like most boxers, Lee blew through the money he made during his boxing career, an estimated $90,000 (roughly equivalent to $1,644,684 today).  “Just threw it away,” Lee later admitted. Later, Lee lobbied for insurance, health care, financial consultation and retirement homes for fighters. “The average boxer possesses little education,” he said in 1946. “If he winds up broke, he has no trade, no education and nobody to turn to.” Continue reading

Ethics Warm-Up, 2/8/2019: Coming Out Of My Green New Deal-Induced Coma Edition

Good afternoon!

Sorry; this was all set to go up by 10 am until I read the Green New Deal, and it sent me back to bed.

1. Green New Deal-related, he typed warily: Let’s see if the news media and pundits are as scrupulous about transparent flip-flops when they come from a cute socialist. During an interview with NPR, host Steve Inskeep pointed out to Rep. Ocasio-Cortez how much government involvement it would take to implement the so-called Green New Deal,” She responded,

“It does, it does, yeah, I have no problem saying that. Why? Because we have tried their approach for 40 years. For 40 years we have tried to let the private sector take care of this. They said, ‘We got this, we can do this, the forces of the market are going to force us to innovate.’ Except for the fact that there’s a little thing in economics called externalities. And what that means is that a corporation can dump pollution in the river and they don’t have to pay, but taxpayers have to pay.”

Then, a few hours later, Chuck Todd that same day asked Ocasio-Cortez about the same issue: wouldn’t this require a massive government take-over of private enterprise? This time, she resorted to Authentic Frontier Gibberish and said:

“I think one way that the right does try to mischaracterize, uh, what we’re doing as though it’s, like, some kind of massive government takeover. Obviously, it’s not that, because what we’re trying to do is release the investments from the federal government to mobilize those resources across the country.”

When the truth proves unpalatable, resort to double talk. There is no reason to trust anyone who does this. They are trying to deceive you.

2. But—But–I thought putting Kavanaugh on the Court meant that abortion was doomed, since all the justices appointed by Republicans vote in lockstep! The issue was whether a Louisiana law that required doctors to have admitting privileges in hospitals before they could provide abortions should be stayed pending a Supreme Court challenge. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh wanted to deny the stay, with Kavanaugh writing in part,

[E]ven without a stay, the status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period. I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate….

The law has not yet taken effect, so the case comes to us in the context of a pre-enforcement facial challenge. That means that the parties have offered, in essence, competing predictions about whether those three doctors can obtain admitting privileges….

Before us, the case largely turns on the intensely factual question whether the three doctors—Doe 2, Doe 5, and Doe 6—can obtain admitting privileges. If we denied the stay, that question could be readily and quickly answered without disturbing the status quo or causing harm to the parties or the affected women, and without this Court’s further involvement at this time…. [D]uring the 45-day transition period, both the doctors and the relevant hospitals could act expeditiously and in good faith to reach a definitive conclusion about whether those three doctors can obtain admitting privileges….

Roberts joined the four Democratic appointees—the liberal wing, natch—to allow the stay. Conservatives are horrified, but all this means is that he’s evaluating the case on its merits as he sees it, not following a pre-determined ideological script in lock-step fashion, like, say, the four liberal justices he voted with.

It’s called integrity and independence. Good for Roberts. Maybe he can persuade other justices to view their roles similarly. Continue reading

Ethics Hero: Bob Cousy

I was thinking of adding “Boston Celtics and pro basketball legend” to the title, but I depressed myself thinking it was necessary, which of course it is. When Bob Cousy retired, in 1962, there wasn’t a more famous NBA star alive. Now, not only is the play-making wizard who led the Boston Celtics through the beginning of their unparalleled dynasty unrecognizable to most Americans, so is the kind of basketball he played, before it was all dunking and styling by pituitary cases.

But I digress.

In the newly published book “Last Pass” by Gary Pomeranz,  Cousy, the Hall of Fame Boston Celtics captain who led the team to its first six championships, opened up about his relationship with Bill Russell, the great, enigmatic, difficult, defensive genius  who was the center on Cousy’s teams, and on many Celtics championship teams thereafter. Russell was the first back superstar in sports-crazy, perpetually racist Boston,  and as he reaches 90, Cousy is reflecting on what he did, and what he didn’t do, as the white superstar on a team whose brilliant black center was often the target of racists. In the Boston suburb of Reading, vandals once broke into Russell’s home, spray-painted racist graffiti on walls and defecated on his bed. The Cooz, as he was called, is remembered as being  ahead of his time as an NBA player in his sensitivity to race and civil rights. Still, Cousy blames himself for not having done enough, and for not having understood the depth of prejudice Russell faced as an African-American in Boston. Cousy told the historian that he wants to make amends. Continue reading

Bill Robinson, Fred Astaire, And The Good “Blackface”

We recently came through the usual Halloween bag of “blackface” controversies, and Ethics Alarms, as it has before, tried to guide the discussion to the material distinctions that social justice warriors, who strategically deal in absolutes when seeking power through real and contrived offense, refuse to acknowledge or are intellectually incapable of doing so. The short version of the Ethics Alarms message: make-up for legitimate theatrical purposes isn’t “blackface,” isn’t “racist,” and shouldn’t be object of knee jerk condemnation based on emotion or ignorance.

Today Turner Movie Classics showed “Swing Time,” the 1936 musical that is probably the high water mark in the Ginger Rogers-Fred Astaire canon. It has the best song (“The Way You Look Tonight”), the best novelty scene (Astaire pretending to be a klutz in a dance lesson with Ginger, then shocking her and her boss—and saving her job— by showing “what a great teacher she is” by dancing, well, like Fred Astaire) and arguably two of the best dances by the two, “Never Gonna Dance” and “Waltz in Swing Time.” The film also contains a controversial “blackface” number, “Bojangles of Harlem,” in which Fred pays homage to two great black tap dancers who were teachers and inspirations for him, Bill “Bojangles” Robinson and John Bubbles. Local TV stations have long been reluctant to show “Swingtime” because of guaranteed complaints that the number is racist, or, if they cut the number (which is unconscionable), complaints pour in from film and Astaire fans that they have defaced a classic out of misplaced political correctness.

If one argues that the number is “racist” because of Fred’s make-up, then one is necessarily arguing that no white performer can ever offer an admiring  salute to an African-American great by emulating him. Astaire’s choreography (by Hermes Pan) contained specific references to trademark steps and gestures by both Bubbles and Robinson, though more of the former than the latter. (Some would say, maybe even Fred, that this was because he didn’t dare set himself up to be compared to Robinson, whom many regard as the greatest tap-dancer of them all.) Blackface, as typified by minstrel shows, was a burlesque of negative black stereotypes. There isn’t a hint of this in Astaire’s number: he wears dark make-up because he is honoring two contemporary black dance stars who he knew, learned from, and respected. The make-up is the epitome of a legitimate theatrical device, and racially demeaning neither in intent nor effect. Those who see it as such are either deliberately misconstruing the number, or don’t know what they are talking about. (There is an unfortunate racially demeaning set piece that appears for a couple of seconds at the start, a large caricature of exaggerated black features. You can take the film out of 1936, but you can’t take 1936 out of the film.)

The ironic part of the effort to quarantine “Bojangles of Harlem” is that the number is one of the few reminders in our culture of who Bill Robinson was, and—here’s Jack on his “duty to remember” and cultural literacy soapbox again–he was an important figure in American theatrical, cultural and civil rights history that should be remembered.  Instead, Robinson is almost completely forgotten: I bet most of the NAACP members who get up in arms when TMC shows “Swing Time” have no idea how significant Robinson was, and the contributions he made to art and society. Continue reading

Ethics Dunce: The American Bar Association

Res Ipsa Loquitur: The American Bar Association  Section on Civil Rights and Social Justice will bestow the prestigious Thurgood Marshall Award on former Obama U.S. Attorney General Eric Holder during the ABA Annual Meeting in Chicago on August 4. It has been obvious for a long time, but if anyone needed any further evidence that the ABA is now a full-fledged partisan left-wing organization masquerading as an objective professional association, this is it. Holder wasn’t just a bad AG, he was a political one in what is supposed to be a non-political office. He was also racialist, and obviously so, regularly coordinating with Al Sharpton and his followers, and constructing a Civil Rights division that adopted the position that only whites could engage in civil rights violations.

Holder should have disqualified himself from any professional awards, not to mention his high office in the Obama Administration, when he gave the green light to President  Clinton’s  infamous pardon of Democratic donor Marc Rich (aka. Clinton’s quid pro quo for his ex-wife’s  fat donation to his Presidential library). In fact, it was a defining moment, and having defined himself as a partisan lackey, Holder was exactly what President Obama wanted at Justice. Holder intervened in the Trayvon Martin case to signal it as a race-related crime in the absence of any evidence, and did likewise in the Michael Brown shooting, lighting the fuse of racial distrust and community anger at police. Then he called the United States a “nation of cowards” regarding race relations. The real coward was Holder, who used his race—he was the first black Attorney General—to shield himself from the accountability and criticism his mishandling of his office deserved.

Holder was held in contempt of Congress—and allowed the captive news media to call the action “racist”—after he withheld documents and key witnesses from oversight committees looking at several scandals in which his Justice Department was complicit. Notable among them was the “Fast and Furious” fiasco in which the government allowed Mexican drug gangs to get high-powered weapons, one of which ended up killing an American. Holder actively misled Congress in testimony under oath.ore than once.  He sought significant reductions in privacy and due process protections for citizens—civil rights? Hello, ABA?— and personally announced and supported Obama’s “kill list” policy, in which the President asserted the right to kill any U.S. citizen on his sole authority without a charge or due process.  Holder let his  department apply the controversial Espionage Act of 1917 to bring twice the number of such prosecutions under the Act that had occurred under all previous Attorneys General.  He led the Obama Administration in a campaign against government whistle-blowers. Holder championed warrantless surveillance (Civil rights? Hello?). Most damning of all given the title of his upcoming award, Holder was personally involved in targeting journalists for surveillance and  was the leader of an Obama administration attack on the news media that was condemned by many public interest and media groups. Holder’s Justice Department seized phone records for reporters and editors  at three Associated Press offices as well as its office in the House of Representatives. Under oath, Holder later claimed to know nothing about any of it.

Writes Prof. Jonathan Turley, who has written many searing articles documenting Holder’s disgraceful tenure at Justice,

“Holder’s “contributions” cost civil liberties dearly in this country. If the ABA is to give him this award, it could at least spare civil libertarians and journalists the reference to civil liberties.”

_______________

Note: You can read the various Ethics Alarms documentation of Holder unethical words and conduct here.

This one is probably my favorite, from 2014.