fairness

The Last Of The Nazi War Criminals

/ Jack Marshall / 23 Comments

Coincidentally, just as I am completing watching the Netflix documentary “The Devil Next Door,”  another former Nazi prison guard has begun trial on charges that he was an accessory to 5,230 murders at a German concentration camp in Poland during World War II.  “The Devil Next Door” engrossingly tells the strange story of a Ukrainian immigrant named John Demjanjuk who appeared to be a model U.S. citizen, respected neighbor and beloved husband and father in Cleveland before the U.S. decided he was really a former Nazi camp guard nicknamed “Ivan the Terrible” for his sadism and brutality at the Treblinka Nazi death camp in Poland. Demjanjuk was stripped of his U.S. citizenship and tried in Israel from 1986 to 1988 for crimes against humanity. A three judge panel convicted Demjanjuk and sentenced him to hang after a dramatic (and troubling) trial, but the former Ford auto-worker died while his  appeal was pending. Under the doctrine of abatement ab initio, he is still presumed innocent.

As I have written here before, I have many ethical problems with the concept of war crime trials, but “Ivan the Terrible” certainly tests them. Whether or not Demjanjuk  was Ivan, the Treblinka gas chamber operator was a monster even by SS standards, torturing the camp’s Jewish victims before their extermination. In the United States, I cannot imagine that that Demjanjuk would have been found guilty beyond a reasonable doubt: the evidence was compromised, the eye-witnesses often contradicted themselves and appeared confused (“Some were liars, some were senile, and some were liars and senile” is how Demjanjuk’s Israeli lawyer puts it on camera). The most damaging testimony against Demjanjuk was his own, and in the U.S. he never would have been allowed to testify.

Was he “Ivan”? All one can say is “probably.” The case was not proven beyond a reasonable doubt, not even close to it.

At the time, it was widely believed that Demjanjuk’s would be the last Nazi war crimes trial, but now  Bruno Dey, 93,  a prison guard  in the Stutthof camp near what’s now Gdansk, Poland, is being tried in Hamburg, Germany. Continue reading →

Fairness to Elizabeth Warren

/ Jack Marshall / 6 Comments

Yes, even the 2020 Presidential race’s worst panderer and #1 demagogue deserves the same leave as any other lawyer, which is not to be held responsible for her client’s views and deeds. Every lawyer who ever runs for office or who comes within the cross-hairs of unethical pundits faces these attacks, which I have written about here repeatedly and pledged to address any time they come to my attention. “Elizabeth Warren’s Days Defending Big Corporations” warns the Times, hinting at hypocrisy by noting,

“Ms. Warren has ascended toward the head of the Democratic presidential pack on the strength of her populist appeal and progressive plans, which include breaking up big technology companies, free public college and a wealth tax on the richest Americans…Against that backdrop, some of Ms. Warren’s critics have seized upon her bankruptcy work for LTV and other big corporations to question the depth of her progressive bona fides. How, they wonder, could someone whose reputation is built on consumer advocacy have represented a company seeking to avoid paying for retired miners’ health care?

Here’s how: a lawyer’s personal convictions, values and beliefs are completely irrelevant to her clients or choice of clients. Those who think otherwise don’t understand legal ethics, or lawyers, or their function in society. For the heaven-knows-how many-teenth time, here is critical Rule 1.2 b of the ABA Rules of Professional Conduct: Continue reading →

And Now It’s Zombie James Dean…

/ Jack Marshall / 16 Comments

From The Hollywood Reporter:

James Dean, who died in a 1955 car crash at the age of 24, is making an unexpected return to the big screen. The cultural icon, known for Rebel Without a Cause and East of Eden, has been posthumously cast in the Vietnam era action-drama Finding Jack.

Directed by Anton Ernst and Tati Golykh, the project comes from the filmmakers’ own recently launched production house Magic City Films, which obtained the rights to use Dean’s image from his family. Canadian VFX banner Imagine Engine will be working alongside South African VFX company MOI Worldwide to re-create what the filmmakers describe as “a realistic version of James Dean.”

We all saw this coming, didn’t we? Since this is about involuntarily resuscitating dead actors so greedy family members can put them to work doing whatever a director screenwriter wants them to do, I feel no need to write a new post, especially since my position hasn’t changed one bit from the other instances in which I looked at this issue. So here it is again, lightly edited… Continue reading →

Comment Of The Day: “Comment Of The Day: ‘Unethical Tweet Of The Month: Rep. Alexandria Ocasio-Cortez (D-NY)'”

/ Jack Marshall / 21 Comments

Humble Talent has issued an excellent and provocative post on one of the Great Ethics Controversies: what is fair, ethical and effective criminal justice punishment in a nation with the values of the United States?

I admit that this is an ethical blind spot for me, perhaps because I worked as both a defense attorney and a prosecutor. My natural inclination is toward the Baretta theme song: “Don’t do the crime if you can’t do the time.” Or, for that matter, if you can’t pay the fine. I also believe, as Humble alludes to skeptically  in his final paragraph, that the culture of the United States, emphasizing individual freedom and encouraging self-worth measured by success, does make criminal activity more common, and its history and culture also increase the frequency of  violent crimes. I don’t trust cross cultural comparisons; I think they are all misleading, and often intentionally so. The United States is unique.

Nonetheless, all of the issues brought up in the post are complex and important to examine, carefully, seriously. I have not forgotten this post, though I needed  Humble Talent’s comment to make me track it down,  and I hereby pledge to make criminal justice issues, and especially prison,  a higher priority here.

This is Humble Talent’s Comment of the Day on the post, “Comment Of The Day: ‘Unethical Tweet Of The Month: Rep. Alexandria Ocasio-Cortez (D-NY)’”

We’ve talked about this issue before, tangentially… And it’s something of a hot topic for me. It’s something that differentiates me from the group, I think, because it’s something I think America could do better, and it seems to be something that other right-leaning commentators are somewhere between apathetic to and actually proud of.

I think, and I could be wrong, but I think that this reaction is more of a rejection of the other side than a legitimate statement of belief. Progressives seem to no longer be content with the steady beat of “normal” progress, instead seeming to be approaching everything from politics to the personal with a militant quasi-religious fervour.

And to a point, who can blame them? If I listened and believed half of what their thought-leaders are telling them, I might be right there beside them. I’m of the opinion that people on the right feel like (and I agree with them, to an extent) they are perpetually under siege; their values, their way of life, their livelihoods, their basic understanding of the rules of the game of life. They’re given no rest, having the steady grind of not only the overt political messaging, but cultural and familial shifts happening around them in real time. And that’s worn away the dermis a little, they’re on their last nerves, and not picking their battles very well, instead opting to fight everything. Because otherwise…. The wholesale rejection of criticisms of the penal system seems… kinda shitty when you think about it. Continue reading →

The Paul Storey Death Sentence Mess

/ Jack Marshall / 4 Comments

In 2008, a Texas jury found that Paul Storey (left) had murdered Jonas Cherry (right), and the prosecutor, Christy Jack, told the same jury deliberating on the proper punishment,  “It should go without saying, that all of Jonas’s family and everyone who loved him believe the death penalty is appropriate.”

Storey was indeed sentenced to death by the jury’s vote. Cherry’s family, however, opposed the death penalty, and said they always had. In 2016, they issued a video reaffirming their principled objection to executions,

Responding to the video, one of the jurors, Sven Berge,  made a  sworn statement in 2017 stating, “Had I known that Jonas Cherry’s parents were opposed to Paul Storey receiving the death penalty, I would have never have voted for death.” The Texas Court of Criminal Appeals, upon a writ of habeas corpus filed by Storey’s lawyers, stayed Storey’s impending execution and   ordered Judge Everett Young  to investigate whether Jack’s statement  had affected the jury’s decision. After a three-day hearing, he ruled last year that ProsecutorJack’s statement  was improper and prejudicial, because it constituted prosecutorial misconduct “to interject the wishes of the victim’s family for the jury to return a verdict of death.”

Not only that, Judge Young also found that the Jack’s statement to the jury was false. This meant that the judge rejected testimony from  Jack defending her claim that the family wanted Storey to die. She had testified under oath that Jonas Cherry’s father approached her during the trial to say he had changed his mind about opposing the death penalty. The judge recommended that  Storey’s death sentence be reduced to life without parole.

As if that wasn’t enough to confuse things, a Texas appeals court, in a 6 to 3 ruling, has held  that new evidence about the prosecutor’s apparent falsehood did not justify reducing Storey’s sentence, not because a lie sent him to Death Row, but because defense lawyers waited too long to raise the issue and should have been more diligent in seeking Cherrys’ views on capital punishment. One of the dissenting judges, In Judge Scott Walker objected to the opinion’s assertion  that  lawyers should to “go prying into the private feelings of a murder victim’s family without a very good reason for doing so,” other than beginning with the presumption that “prosecutors misrepresented the truth or even lied.”

As it stands now, however, Storey’s execution will proceed.

What’s going on here? Continue reading →

The High School Football Slaughter

/ Jack Marshall / 11 Comments

The winning team’s players weren’t really that much bigger; they just seemed that way.

The last time I wrote about the topic of high school football routs (I think) was here. In that post from 2013, I discussed a  “vengeful father who watched his son’s hapless football team get the just desserts of all hapless teams—losing badly” who filed a formal complaint accusing the winning team of “bullying.” The Aledo High School  (Fort Worth, Texas) should have “laid up, he claimed, and not doing so was poor sportsmanship.”

This guy apparently moved to Long Island, and bullied legislators there into adopting his concept of sportsmanship. Nassau County has a policy designed to prevent lopsided results in high school football games, decreeing that if a team wins a game by more than 42 points, the winning coach must explain to a special committee why such an outsize margin could not be avoided. If the coach is not sufficiently convincing, woe be unto him.

So when the  Plainedge Red Devils made a fourth-quarter touchdown against the previously unbeaten South Side Cyclones, making the final score 61-13, a 48 point margin, Plainedge coach Robert Shaver was called on the metaphorical carpet. His explanation wasn’t good enough, apparently, so he was given a one-game suspension.

From the Times account: Continue reading →

“I’m Baaaack….” Ethics Catch-Up, 11/1/2019: And Answer, A Rebuke, And A Shock

/ Jack Marshall / 41 Comments

Rolled back into Alexandria last night, having had an uproarious response from the New Jersey Bar to the special Halloween edition of “Ethics Rock Extreme in Asbury Park seven hours earlier.  The group of lawyers demolished all previous groups for sing-along enthusiasm and prowess in the finale, “The Ethics Man,” a parody of Billy Joel’s “Piano Man.” (My colleague, collaborator and friend Mike Messer gets credit for their verve, I think, for he was in top form, delivering the various songs in hilarious impressions of Joel, Paul Simon, Bob Dylan, Johnny Cash, John Fogarty, and Bobby Pickett imitating Boris Karloff. among others.

I couldn’t get up the energy after the four-hour drive to get a post up last night, so the Ethics Alarms commentariat ended up holding down the metaphorical fort here for all of Halloween. I haven’t had a chance to read all of the comments, but thank-you, everyone. There were even some baseball ethics posts!

Still, there are a lot of ethics issues languishing in my absence. I’m fried, and there are also paying ethics jobs to do and promised to keep, so be patient with me, please.

1. An ethics answer to an ethics question. One Forum comment I did see was this one, from Sarah B.

I have an ethics question. The set up is a bit long, so please bear with me.

Imagine a small town where one out of every nine people works for the same company. Now, this company hires predominantly men, not because it is sexist, but because the work and positions available are more likely to be applied for by men. 9 out of every ten employees are male. In addition, it pays well enough that if a married man were to work in a salaried position, he could make enough money that his wife could stay home with the children if the couple displayed only a modicum of frugality. Thus, most stay-at-home mothers in the community have a husband who works for the same employer, usually in different stages of the chain of command.

Now, imagine that there was a low level supervisor and one of his subordinates. They are of similar ages and have similar values. Their wives are of similar ages and find each other to be enjoyable company. Their children are of similar ages and like to play together. Also, no one else in the supervisor’s area is of a similar age, value system, or time in their families. (No kids or college age kids)

Is it unethical for these two families to hang out socially? What if it is just the wives and kids, not the husbands? What about kids birthday parties, as the kids are friends?

I have heard both sides of this argument played out in my town, but often with both sides using some set of rationalizations from our host’s list. I’d like to hear a more educated opinion here.

Continue reading →

From The “Nah, There’s No Mainstream Media Bias!” Files: The Washington Post Plays Partisan Politics With A Headline, And Can’t Even Do It Competently

/ Jack Marshall / 40 Comments

Once again I will begin by saying that those who deny the partisan bias in the mainstream media against President Trump (among other topics) deserve contempt, either for their lack of perception of the obvious, or for their atrocious citizenship. The last metaphorical rotten journalism gun choking the public with smoke was September’s effort by the New York Times and two of its reporters to continue the smearing of Justice Kavanaugh, a story quickly buried by the Ukraine phone call impeachment plot. (I know, I know, I never got my promised post up on Kavanaugh II. But I will, if it takes until December…) The latest, this time by the Washington Post, is pure res ipsa loquitur. Let me break it down:

I. From the New York Post:

A “high value” target believed to be ISIS leader Abu Bakr al-Baghdadi has died in a US raid in Syria Saturday, according to multiple news reports. Baghdadi was targeted in a strike by US Special Operations forces, three US officials told ABC News. One of those officials told ABC that it is believed the ISIS leader detonated a suicide vest as the ground raid was carried out in the northwestern city of Idlib. Defense Department officials told the White House Saturday it had “great confidence” that Baghdadi was killed in the raid, Newsweek reported, citing Army sources.

This is an undeniable achievement by U.S. forces of the type that the previous President claimed great credit for, and received from the news media without hesitation.

II. Reporting on the terrorist leader’s death, some headline writer at the Washington Post naively played it straight, as if the Post was a real, trustworthy news source. Referring to Al-Baghdadi as “Islamic State’s terrorist-in-Chief” in the obituary heading. Oooh, can’t have that! It will make casual readers assume that the Trump Administration did something praiseworthy!  So the foolishly objective headline writer was dispatched to the Kids Post section, and new headline was appended:

That means President Trump just killed a religious scholar! Oh, he may have been austere, but that’s no reason to kill him! Trump’s a monster!

This was so misleading and blatantly absurd that it didn’t remain for more than a couple of hours. Ultimately the Post settled on…

That’s better, but it omits the little detail that the man was a terrorist, like, for example, Osama Bin Laden. The first headline was the right one; unfortunately, it might have benefited President Trump.

III.  The Post was caught red-handed. Tweeted muck-raking journalist Glenn Greenwald, no friend he either to the mainstream media or President Trump…

Democrats, Washington Post, mainstream media…Greenwald properly lumps them all together. Charles Glasser wrote, Continue reading →

Catch-Up Ethics Warm-Up, 10/22/2019: Updates, Word Policing, And The World Series

/ Jack Marshall / 27 Comments

Late start to the day…

…in part as a hangover from the lively Smithsonian Associates presentation on cross examination with my sister last night. The event was completely sold out, a first among my five Smithsonian programs, and it was an intense two hours, followed by lively questioning from some participants who stayed for nearly an hour to grill us.

1. Good ethics news follow-up: Marlon Anderson, the black security guard who was fired from Madison’s West High School last week for protesting being called “nigger” by  a student, thus triggering an unreasonable, brain-dead and indefensible “no-tolerance”  policy, is being reinstated.

Interim Superintendent Jane Belmore  rescinded the termination less than a week after Anderson was fired. The dismissal triggering intense criticism here and elsewhere, including a student walk-out.  One nice thing about incompetent bureaucracies is that their lazy, thoughtless, unethical actions seldom are accompanied by any real logic or conviction, so they will usually back down, following the path of least resistance.

Still, as Ethics Alarms has asked dozens of times, how can responsible parents trust educators whose judgment is so wretched?

I also want to note that most publications reporting on the story emulated the Wisconsin State Journal, which wrote, “A black security guard who was fired from Madison’s West High School last week for repeating a racial slur a student had hurled at him, in an attempt to correct the student, will get his job back.”

Gee, which racial slur? Isn’t the particular slur an essential part of this story? Was it “negro”? “Uncle Tom”? When is it ever competent journalism to withhold relevant information from readers? Is the theory that the mere word will upset some readers more than the tales of carnage the same publications include daily without censorship? Do we read stories that report, “Someone did something really terrible to 26 people in a church using a weapon of some kind”?

In this case, withholding the crucial word at issue supports the “logic” behind the no-tolerance policy that led to the whole fiasco.

2. In more news of progressive word-policing:  Massachusetts state Rep. Daniel Hunt—Guess what party he belongs to. Come on, guess!  Hey, you have a 50-50 chance of being right!—-has submitted a bill to the legislature that would criminalize use of the word “bitch.” There will be a hearing today on Beacon Hill. Of course the bill is unconstitutional, but why should we expect elected representatives to be able to figure that out?

Meanwhile, the Boston Herald, supposedly the city’s conservative paper (meaning it’s not as left-biased as the Boston Globe) didn’t dare publish the word, writing instead, “the B-word — the term for a female dog that is commonly used to slander women.”

Someone should  tell the Herald that calling a woman a “bitch,” no matter how unjustified, cannot possibly constitute slander. Continue reading →

Once Again, The Unwarranted Presumption Of Racism

/ Jack Marshall / 19 Comments

“What’s that kid doing up there?”

If something undesirable happens to an African American, the culture is pushing the norm that the misfortune ought to be presumed to be the result of racism until decisively proven otherwise. Similarly, if a white individual is responsible for a black citizen’s plight, deserved or not, the white individual’s motivations are also presumed to be based on racial animus.

Both presumptions are nothing less than sanctified bias and prejudice, as much so as racism itself.

A case study from Washington, D.C.:

About a hundred seventh and eighth-grade students from Shelton Intermediate School in Shelton, Connecticut were visiting the nation’s Capital last week. The group was supervised by twelve chaperones, and the itinerary included the usual museums, monuments and landmarks, including the newest attraction, the Smithsonian’s  African American Museum.

While touring the museum, a male student leaned over a balcony and drooled or spit down on the visitors below. His saliva struck one of them, and the victim was black.  As a result of the incident, the entire group was ejected from the museum. Continue reading →