Sunday Morning Ethics Warm-Up, 4/25/21: “Genocide,” Crisis” And “Honeymoon”

John-Tenniel-Humpty-Dumpty

The good news is that I’m back at the keyboard, though at a ridiculous hour. The bad news is that I’m here because I’m out of pain-killers, and my mouth is killing me. [UPDATE: I started this post at 3 am, couldn’t continue, and now it’s after noon. I’m clearly a weenie. I’m pretty sure my father endured worse pain than I am dealing with all through his life and repeatedly after his foot got blown up in the war, and he never complained once…]

Yesterday marks a great moment in ethics, and my plan was to mention it on time. On that date, April 24 in 1863, Francis Lieber, a Prussian immigrant whose three sons served in the Civil War, created what became General Orders No. 100. Reflecting his many writings on the topic, it was a code of conduct for Federal soldiers and officers when dealing with Confederate prisoners and civilians. The code was subsequently borrowed or adapted by many European nations, including influencing the Geneva Convention. Unique when it was written, Lieber’s code was the product of a committee of four generals and Lieber, who were tasked by Union General Halleck to draft rules of ethical combat. The the 157 articles established regulations and standards for the treatment of prisoners, exchanges, flags of truce, and much more. The document was written almost entirely by Lieber, and there was nothing like it.

1. President Biden does the ethical thing that President after President didn’t have the guts to do…He finally authorized referring to the Ottoman Empire’s Armenian genocide as “genocide.”

Good. Any President since 1916 (that’s Woodrow Wilson through Trump) could have made official the historical reality, but keeping our Turkish allies happy by enabling their long denial was deemed more pragmatic. Of course what the Ottoman Empire did to its Armenians was genocide. An estimated 800,000 to 1.2 million Armenian men, women, children, elderly and ill Armenians were marched to the Syrian desert in 1915 and 1916, with many thousands killed on the way. There they were placed in concentration camps. After another wave of massacres in 1916, only 200,000 of those deported survived. Many of these were forcibly converted to Islam and integrated into Muslim households. Still more massacres and ethnic cleansings of Armenian survivors were carried out by the Turkish nationalist movement after World War I. Naturally, the Armenians’ property was confiscated in the process. The genocide reduced the Armenian population of the Ottoman Empire by an estimated 90%

2. And yet, ironically, the same administration refuses to use the word “crisis” to describe the current illegal immigration mess at the Mexican border, a crisis entirely created by Biden’s implicit invitation to aliens to break our laws and eventually benefit from doing so. Thus Politico, part of the Left’s propaganda and disinformation apparatus, sent out a memo to staff telling them not to use the term “crisis,” and to “avoid referring to the present situation as a crisis, although we may quote others using that language while providing context. While the sharp increase in the arrival of unaccompanied minors is a problem for border officials, a political challenge for the Biden administration and a dire situation for many migrants who make the journey, it does not fit the dictionary definition of a crisis. If using the word ‘crisis,’ we need to ask of what and to whom.”

The situation indeed fits the dictionary definition of “crisis.” Politico also doesn’t seem to be troubled at all that it and every other news source referred to a similar but far less massive wave of children showing up at the border when Trump was President as a “crisis.”

Continue reading

The Paid Expert Witness Problem [UPDATED And CORRECTED]

“Check enclosed…”

When a lawyer’s expert witness testifies in a trial, the opposing counsel will always ask, “You’re being paid for your appearance today, isn’t the true?” The one time I was asked that question, I answered, “I’m being paid for my time, not my opinion.” Of course, many experts—yes, even ethics experts—are accepting payment for their opinion. The case of a Houston lawyer’s recent conduct, however, is the worst example of this reality crossing the ethics lines, hard.

Lawyer Mark Lanier had presented father-and-son orthopedic surgeons to the court and the jury as unpaid experts, emphasizing that they were testifying pro bono while the defendants’ experts had been bought. Naturally, this made them seem more credible to the jury. After the trial, however, and after the jury had awarded Lanier’s client  a handsome verdict and damages of $151 million, it was discovered that Lanier made a $10,000 charitable donation to the father’s favorite charity before trial, and sent “thank-you” checks totaling $65,000 to the surgeons after the trial, accompanied by notes of gratitude.

But they weren’t being paid for their testimony—at least, not when they were asked about it. Continue reading

Death Throes Of The Death Penalty: Dumb Expert, Dumb Advocates, Dumb Debate

“Next!”

As I recently concluded, the death penalty is beyond saving, not because it can’t be defended ethically and morally, but because the issues are tangled beyond repair.

The controversy over the legality of the so-called drug cocktails that somehow became our execution method of choice is a perfect example. The battles over capital punishment trapped policy-makers into this kinder, gentler, ridiculously complicated method of execution that has suffered snafus ranging from unavailable drugs to ugly extended deaths. The problem is the floating definition of “cruel and unusual punishment,” prohibited by the Constitution, but almost entirely subjective. Many judges think killing a killer is itself cruel by definition, and the more reluctant Western Europe becomes to execute the worst of the worst, the easier it is to make the argument that the death penalty is also unusual.

I don’t get it. I never have. India once executed condemned criminals by having the subject place his head on a stump under the raised foot of  trained elephant, which on a command would smash the head like a grape. Quick, painless–messy!—but virtually fool-proof. A pile-driver would be an acceptable equivalent.  Ah, but ick! In this stupid, stupid, intellectually dishonest debate, ick always equals “cruel and unusual,” because to opponents of the death penalty, killing people, even horrible, dangerous people, is inherently icky.

(Oddly, ripping unborn babies out of the womb is not, but I digress.)

I’ve admitted it, and I will again. (This lost Ethics Alarms Luke G., one of its best commenters the last time.*) It is obviously wrong to intentionally prolong an execution or deliberately cause pain, but if the occasional execution is botched and the condemned suffers, that should be cause for great rending of garments, nor should it be used to discredit capital punishment. As I wrote here about Clayton Lockett’s execution in Oklahoma

“There was no question of Lockett’s guilt, and his crime was inhuman. Such wanton cruelty and disregard for innocent life warrants society’s most emphatic rebuke, and the most emphatic rebuke is death. It is essential that any healthy society make it clear to all that some crimes forfeit the continued right to not just liberty, but also life. Anyone who weeps because this sadistic murderer experienced a few extra minutes of agony in the process of being sent to his just rewards has seriously misaligned values. No method of execution will work every time, and to make perfection the standard is a dishonest way to rig the debate. If the death penalty is justified, and it is, then we should expect and accept the rare “botch.” Meanwhile, if the concern really is efficiency, reliability, speed of death and minimal pain, there are literally dozens, maybe hundreds of methods of swift execution that would accomplish this. They just won’t pass the standards of death penalty opponents, because no method will.”

Today the Supreme Court heard oral arguments on the question of whether Oklahoma’s use of the common surgical sedative midazolam did not reliably make prisoners unconscious during lethal injections, thus violating the Eighth Amendment’s protection against “cruel and unusual punishment.” It’s a ridiculous case, which arises out of the botched April 2014 execution of Lockett that sparked the post I just quoted. It is a ridiculous case because the method of execution isn’t worth arguing over. Elephant. Head. Problem solved. Why is Oklahoma fighting about which cocktail to use? This is the anti-capital punishment team’s game, and sooner or later, the result is preordained.  Continue reading

A Remorseful Prosecutor Apologizes

Above: Glenn Ford Today. L-Ford in 1983 R-The apologetic prosecutor

Above: Glenn Ford Today. L-Ford in 1983 R-The apologetic prosecutor

Now THIS is a #1 Level apology on the Ethics Alarms Apology Scale.

It’s more than an apology, really: it approaches self-flagellation. The tragic aspect of the confession and apology of former prosecutor  A.M. “Marty” Stroud III,  is that no one can really apologize for what he did, not after 30 years. For Stroud was the lead prosecutor in the December 1984 first-degree murder trial of Glenn Ford, who was convicted and sentenced to death for murdering Isadore Rozeman. Ford was innocent, and was finally released a year ago. His is a classic, horror story of justice derailed. Continue reading

A Shocking Legal Ethics Violation In Utah

So...would you like to revise your testimony about the harmless electric shock, Professor?

“So…would you like to revise your testimony about the ‘harmless electric shock,’ Professor?”

(The title is an uncreative and obvious pun, but on the other hand, how often do I have a chance to make it?)

I always advise lawyers that whenever they have a sudden inspiration that involves a trial tactic that they have never heard of anyone else trying, they need to stop and examine whether there are ethical issues involved. Here is a good example of why that’s a good idea.

Electricity expert Athanasios Meliopoulos, while testifying to dispute the claim of Utah dairy farmers who had sued a power company alleging that current from its plant harmed cattle grazing nearby,  said under oath that 1.5 volts could not be detected by a human being.

Don Howarth, an experienced Los Angeles litigator who represented the farmers, decided to undermine the expert’s testimony on cross-examination by giving Meliopoulos  a joke shop pen that was rigged to deliver an electric shock. Howarth told the witness that the retractable pen contained a 1.5-volt AAA battery and challenged him to click it and “tell the jury whether you feel it or not.” What he did not tell the witness, or the jury, or the judge, was that in addition to the AAA battery, the pen also contained a transformer that boosted the battery voltage to up to 750 volts, enough to deliver “a harmless powerful shock,” according to the pen’s packaging.

Meliopoulos, a Georgia Tech professor, pushed the ball-point pen’s button  and was indeed shocked enough to cause  his body to jerk and force him to drop the pen.

How unethical is this? The judge, in fining the lawyer $3000 and issuing other sanctions, listed the breaches: Continue reading

“How Dare Universities Charge Such High Tuition?” KABOOM!* #1: Georgetown University Law Center

headexplode

Kaboom.

James Feinerman, the James M. Morita Professor of Asian Legal Studies at Georgetown University Law Center, who also serves as its associate dean for transnational programs, was hired by the U.S. government as an expert witness  to bolster the prosecution in a spying case, and apparently plagiarized a substantial potion of the report submitted to the court from <sigh–there goes that value of THAT degree> Wikipedia.The defense picked up on the uncited cribbing and the federal court is now examining whether the sources used by Wikipedia are reliable enough for his report to be accorded any validity. The Government, meanwhile, represented by assistant U.S. attorneys Peter Axelrod and John Hemann, is stuck with making desperate “ahumunahumuna” sounds like Ralph Kramden used to do on “The Honeymooners” when he was caught looking stupid and spouting lame arguments in court filings about how Feinerman “utilized language from Wikipedia as a concise English-language summary of his opinions on certain topics.”

Riiiight. Continue reading