fairness

The Case Of The Snoozing Prosecutor

/ Jack Marshall / 5 Comments

cigar ash

There is a true story about Clarence Darrow putting a wire in his cigar and puffing it during an opponents closing argument to the jury. The idea was to create an absurdly long ash, so the jury would become distracted and watched to see when it would fall on his suit, when they were supposed to be paying attention to the summation. I’ve used that story in ethics seminars, asking attendees if this was unethical, and if so, was there a rule that could be used to punish a lawyer who did it.

Now comes word that the Maine Supreme Judicial Court ruled  on Tuesday that there was no prejudicial error in the trial of Buddy Robinson, who was convicted in the death of his downstairs neighbor, despite the fact that the prosecutor, then Assistant Attorney General Andrew Benson, pretended to fall asleep during his Robinson’s lawyer’s closing. Robinson had appealed the verdict because of this and other questionable conduct by the prosecutor. Benson admitted that he sometimes pretended to be asleep in trials to annoy defense attorneys. In its opinion denying the appeal, the court concluded that the trial judge did not err in denying Robinson’s motion for a new trial, given the strength of the prosecution case.

It also said that the fake sleep bit “was sophomoric, unprofessional and a poor reflection on the prosecutor’s office.”

It’s also an ethics violation, a couple of ways. Maine’s Rules… Continue reading →

Tales Of The Unethical: A Client Hacks, His Lawyer Cheats, And HIS Lawyer Spins

/ Jack Marshall / 6 Comments

hackedWhat a mess.

Missouri lawyer Joel Eisenstein saw two documents illicitly obtained by his client: a payroll document for the client’s wife and a list of direct examination questions prepared by his client’s wife’s attorney for an upcoming divorce trial.

This kind of stuff, proprietary material that is handed over to a lawyer by someone, including a client, who received it under dubious circumstances is ethically radioactive. As the DC bar wrote in Ethics Opinion 318…

When counsel in an adversary proceeding receives a privileged document from a client or other person that may have been stolen or taken without authorization from an opposing party, Rule 1.15(b) requires the receiving counsel to refrain from reviewing and using the document if: 1) its privileged status is readily apparent on its face; 2) receiving counsel knows that the document came from someone who was not authorized to disclose it; and 3) receiving counsel does not have a reasonable basis to conclude that the opposing party waived the attorney-client privilege with respect to such document. Receiving counsel may violate the provisions of Rule 8.4(c) by reviewing and using the document in an adversary proceeding under such circumstances and should either return the document to opposing counsel or make inquiry of opposing counsel about its status prior to determining what course of action to take. Continue reading →

Considering The Fox Trump-less GOP Candidates Debate

/ Jack Marshall / 22 Comments

Fox moderators

1. The run-up to the debate yesterday was embarrassing to the news media, especially CNN—even Fox did not obsess as much about the man who wouldn’t be on stage in Iowa as that shameless network. Not that Fox isn’t shameless: it’s greatest shame, Bill O’Reilly, once again showed himself to be both unethical and insufferable when he had Trump on his show and begged, pleaded, and cajoled the real estate mogul to reverse his decision. “Be the bigger man,” Bill said at one point. What the hell does that mean? Bigger than who? His employers—I don’t watch Fox live any more because they are still his employers—who properly refused to let him bully Megyn Kelly out of a moderator’s chair? Megyn Kelly? No, that can’t be it. Trump is a intellectual, moral and ethical midget with delusions of grandeur: O’Reilly was just feeding his ego. Then we learned, from Trump, that O’Reilly had enticed him on the air by promising not to talk about the debate boycott. O’Reilly admitted that was true, and then blathered facetiously about milkshakes, as if lying to a guest’s face was a big joke. O’Reilly is one of the deplorable people—most of his supporters, famous and not, are also in this category—who are so devoid of principles themselves that they make Donald Trump look admirable by comparison.

2. I wish I could say that Megyn Kelly was impeccable last night, but she wasn’t. She had a big chip on her shoulder, and mentioned Trump in the very first question, with a pre-composed, gaggy phrasing about “the  elephant not in the room”—lame witticisms were the theme of the night. That made the first question about her, and journalists are ethically obligated not to inject themselves into the story. No moderator should have mentioned Trump, but Kelly particularly. For the rest of the night she was aggressively adversarial, acting as if she was an undercover moderator from CNBC.

3. If there were any lingering doubts about what an arrogant jerk Ted Cruz is, his performance last night ought to have obliterated them. He reminds me of nothing so much as than the cocky high school nerd who thinks that because he’s elected class President, people really like him, but in truth he is socially hopeless. As a stage director and occasional humor writer, I cannot imagine a more pathetic attempt at a joke than his “I’m a maniac. Everyone on this stage is stupid, fat, and ugly. And Ben Carson, you’re a terrible surgeon. Now that we’ve gotten the Donald Trump part out of the way (rim shot!) . . .” bit. His timing was terrible, and because the thing went on long after everyone knew what the punchline would be, nobody but a shill or an idiot would laugh at it. Cruz got even worse, talking past his limit, whining about the moderators siccing everyone else on him (though they were), trying to change the rules, and sounding like Bill Clinton as he tried to explain away what were his obvious flip-flops on immigration.

I noticed that as the camera panned the debaters dispersing after the debate, nobody spoke to Cruz or even looked at him, while the others were smiling and being collegial to one another. No wonder. Continue reading →

Animal Ethics: The East African Topi

/ Jack Marshall / 43 Comments

topi

The Topi is an African antelope. It’s hard to even google this animal, because Google keeps changing the word to “topic.”

Topi (that’s the singular and plural)  are strange. Their females are fecund only one day a year, which obviously makes that day a little frantic for the males. The males have to corner the females to mate, which is not always easy. Some of the males cheat by lying—there’s no other word for it.

All year long, male Topi warn the herd  of approaching predators by making a special, loud grunting sound that is immediately heard by all as “Watch out! A lion (or facsimile) is nearby!” When Topi hear the sound, they freeze and look  for the potential attacker.

Researchers have found that some male Topi win the mating sweepstakes by unfairly using the sound that 364 days a year means, no kidding, “We’re in trouble!” It has to be believed, for the safety and survival of the herd, and is. One day a year, however, on mating day, there are male Topi who falsely use the warning grunt to freeze shy females in their tracks, and while the girls are searching the area for something with sharp teeth, they get a big surprise from behind. These deceptive males sneak up on them, and it’s wham, bam, thank you, Miss Topi!

Topi males that use this subterfuge, researchers find, mate three times as often as those who play by the rules. Males who don’t cheat, and who don’t risk the effectiveness of a vital species defense device by playing “The Horny Topi Who Cried ‘Lion,” are less likely to pass along their genetic material.

The Topi are encouraging an unethical culture. It works for a few Topi now, but if each generation has more cheaters, will the Topi warning grunt become ineffective the rest of the year? I doubt that Topi have calendars.

If Topi were human beings, would the fake grunt tactic be unethical? Immoral?

Discuss.

__________________

Spark: Nature (PBS)

Rush Limbaugh And The Right: Still Cheerfully Unethical After All These Years

/ Jack Marshall / 40 Comments

OperationChaosII

Yesterday, the grand Pooh-Bah of conservative talk radio chirpily announced that he might “have another installment of Operation Chaos before the Democrat primaries are all said and done.”  If your brain cells have lived that long, you may recall Operation Chaos I, when in March of 2008 Rush directed his zombie followers to vote in Democratic primaries for Hillary Clinton, who was then, as now, sliding fast. The idea was to stop  Barack Obama from clinching Democratic nomination early, and to maximize the chance of a messy Democratic nominating convention. Rush claims that his dastardly plan “worked”: Clinton won the Ohio and Texas primaries with large pluralities from rural, as in conservative counties, presumably full of Ditto-heads. On the other hand, Obama still won the nomination easily, then the election, and the United States was stuck with an incompetent, arrogant leader for eight years.

If that’s what Rush calls a successful plot, I hope we never see one of his unsuccessful ones.

But here he is again, considering the same tactic, though this time the idea is to have conservatives vote for an incompetent socialist, Bernie Sanders, whom none of them would even consider voting for in a real election even if someone was pulling their fingernails out with pliers. This is, as before, unethical in many ways, and it is particularly revolting to read the likes of Instapundit and Newsbusters cheering Rush on. “At the very least this could help make the Democrat primaries more fun to watch as they stretch on and on and….. ” smirks P.J. Gladney, at the latter.

Conservatives are nomore ethical than progressives, it’s just that their lack of ethics expresses itself in different ways.

Operation Chaos and its threatened sequel could only be devised by someone who thought Richard Nixon’s dirty tricks (which included the treasonous dirty trick of sabotaging LBJ’s Viet Nam War peace talks) were a scream, and could only be applauded by conservatives whose love for democracy just applied when it favors them. Rush’s steaming pile of depraved Machiavellianism is not worth my composing a new brief against it: I did a good job the first time. Here, in part, is what I wrote about Operation Chaos, while gagging in disgust, in 2008. It still stands. I’ll just substitute Bernie for Hillary. I don’t have to change anything else except a verb and pronoun here and there: Continue reading →

It’s Time To Play “Ethical, Unethical, Stupid, Or Tongue-In-Cheek?”, The Celebrity Quote Game Show!

/ Jack Marshall / 27 Comments

Quiz show5

Are you ready, panel?

Here we go…I read to you from Mediate:

As the controversy continues over the white-washed pool of actors nominated this year for the Oscar awards, gay British actor Sir Ian McKellen has stated that homophobia is just as prominent in the film industry as racism.

McKellen, perhaps most prominently known for his work in the Lord of the Rings and X-Men series, spoke with Sky News today about why he felt sympathetic to the minority actors who felt like they were being overlooked by the Academy. While McKellen said that the concerns had merit, he also stated that black people were not alone in feeling disenfranchised by Hollywood.

“It’s not only black people who’ve been disregarded by the film industry, it used to be women, it’s certainly gay people to this day,” McKellen said. “And these are all legitimate complaints and the Oscars are the focus of those complaints of course.”

In a separate interview with The Guardian, McKellen also said that actors have won Oscars for playing gay characters in the past, and yet despite being nominated himself, no openly homosexual actor has ever won.

Now, you need some background for this round, panel. 

It is almost certain that a very large proportion of Hollywood is gay, and it has always been this way. The exact percentage is open to question, but those who have worked in other areas of show business encounter a large percentage of gay men, and also women, among designers, producers, directors, and actors, at all levels of the theater. In most college theater programs, there is a clear predominance of gays among both faculty and students. It would be strange indeed if the dominance of gays in the other aspects of show business was significantly different from the demographics in film. This suggests that there must be a strong contingent of closeted or privately gay men and women among the voting members of the Academy of Motion Picture Arts and Sciences.

So now your question, panel: Was Ian McKellen’s bold assertion…

“Ethical, Unethical, Stupid, Or Tongue-In-Cheek?”

You have…30 seconds!

Time’s up!

Continue reading →

Ethics Observations On The Academy’s Pro-Diversity “Fix”

/ Jack Marshall / 38 Comments

Chris-Rock-Backstage-at-Oscars

Apparently panicked by the negative reaction to its all-white 2016 Oscar nominations,  and determined not to give MC Chris Rock more ammunition than he already has, the Academy of Motion Picture Arts and Scientists has rushed into place new voter qualifications for next year’s awards. Under the new rules, members who have not worked over the past 30 years  will lose the right to cast Oscar ballots unless they have been nominated for an Oscar themselves.

What’s going on here?

1. Is this substituting real bias for unfairly assumed bias?

Sure it is.

As one soon to be disenfranchised voter told the Hollywood Reporter, “The Motion Picture Academy, in the spirit of Affirmative Action (which has worked so well in our universities), is determined to take the Oscar vote away from the Old White Guys…Personally, I wish they’d examine their complex preferential ballot procedure which clearly isn’t working right. But no, blame the Old White Guys.” Others noted that to assume older voters, many who were at their peak during the rebellious Sixties and the Civil Rights Era, weren’t voting for black artists was foolish. The new rules seem to be an obvious attempt to stigmatize and penalize older voters.  The seniors, said one dissenting Academy member, are often “perfectly vibrant and very much with it and, while they may be retired, it doesn’t mean they aren’t functioning on all cylinders. They have earned the privilege of being in the Academy through their work and just because they’re no longer active doesn’t mean that they can’t be a good judge of what they’re looking at.” Former actress Delores Hart, who gave Elvis Presley his first screen kiss and who was the top-billed star of “Where the Boys Are?,” was direct, saying,  “It’s age discrimination.”

Of course, Hollywood has long-accepted age-discrimination, and Saturday Night Live would never skewer the Oscars for that. Continue reading →

X-Files Ethics: There Is Nothing Weird About Offering Scully One-Half Mulder’s Contract

/ Jack Marshall / 38 Comments

X-Files

Gillian Anderson reported that when the producers approached the actress about reprising her co-starring role in the re-boot of “The X-Files,” she was offered only one-half of the salary that her male partner, David Duchovny, had agreed to. From the Daily Beast’s shocking account:

The work Anderson put into securing equal pay back in the ’90s seemingly came undone when it came time to negotiate pay for this year’s event series. Once again, Anderson was being offered “half” of what they would pay Duchovny.“I’m surprised that more [interviewers] haven’t brought that up because it’s the truth,” Anderson says of the pay disparity, first disclosed in the Hollywood Reporter. “Especially in this climate of women talking about the reality of [unequal pay] in this business, I think it’s important that it gets heard and voiced. It was shocking to me, given all the work that I had done in the past to get us to be paid fairly. I worked really hard toward that and finally got somewhere with it.

“Even in interviews in the last few years, people have said to me, ‘I can’t believe that happened, how did you feel about it, that is insane.’ And my response always was, ‘That was then, this is now.’ And then it happened again! I don’t even know what to say about it.”

That’s all right, Gillian. I know what to say about it. This was not unfair, disrespectful. or an example of discrimination against women in the workplace. This is called negotiation, and there is nothing unethical about it at all.

Continue reading →

Ethics Hero: Ice Cube…Adult

/ Jack Marshall / 21 Comments

Ice Cube

The Academy Awards nominations flap has been gradually acquiring Ethics Train Wreck Status. Naturally, since it involves race (black artists didn’t get their quota this year, whatever that quota is–it’s a secret quota, but clearly zero isn’t it) and thus an opportunity for him to get some publicity, Al Sharpton weighed in with sputtering outrage, calling for a boycott of the Oscars. Then Spike Lee announced a personal boycott, making no sense in the process, rapidlly followed by Jada Pinkett Smith, who really made no sense, writing,

“Begging for acknowledgment or even asking diminishes dignity and diminishes power. And we are a dignified people. And we are powerful. Let’s not forget it. So let’s let the Academy do them, with all grace and love. And let’s do us.”

Gibberish. What is throwing a tantrum and boycotting your industry and profession as it honors itself and your colleagues’ art because  the people you really care about—those of the right color, you know— didn’t get a nomination, if it isn’t demanding recognition, which is as pathetic as asking or begging for it, just more obnoxious?

Next her husband, Will Smith, who looks like a poor sport by doing so, followed her lead, muttering inappropriate platitudes. He said, “There is a position that we hold in this community, and if we’re not part of the solution, we’re part of the problem.” If you say so, Will. Causing racial division in your profession and sabotaging its big self-promotion night is part of what solution, now?

In ethics train wrecks, all passengers live to regret it. Over at Fox News, panelist and former “Clueless” actress Stacey Dash suggested that black actors had nothing to complain about as long as they participated in blacks-only honors, like the BET Awards, and the NAACP Image awards. What was that supposed to mean? That Oscar should be all-white, since there are all-black awards? Is this a plug for separate but equal? Her argument was incoherent, so naturally Donald Trump endorsed it, saying, and I quote, “Blah, blah, blah, blah…” Among the blahs, he noted,

“So over there — the whites don’t get any nominations, or don’t get — and I thought it was an amazing interview, actually. I never even thought of it from that standpoint. But with all of that being said, it would certainly be nice if everybody could be represented properly…”

Trenchant analysis, you moron.  Continue reading →

Ethics Musings While Sitting In Line At The Gas Station

/ Jack Marshall / 55 Comments
My future, if I don't figure this out...

My future, if I don’t figure this out…

In the middle of a 20 minute errand that became a 90 minute ordeal today, I found myself sitting in an unexpected long line at the gas station I usually patronize.  Maybe it was because people wanted to top off tanks before the blizzard hits tomorrow, but I was really almost out of gas, and the second I moved into the “tank on the right” line, I was socked in. Finally I had only  one car ahead of me, and an absurdly long line of automobiles behind.

The lady in the car ahead, however, was unbelievable. She wasn’t elderly, but she was obese, had something wrong with one leg, and apparently had never filled a gas tank before in her life. She dithered, she paused, she disappeared and returned. She punched in so many characters at the pump that her Debit card password must have been a chapter of “Martin Chuzzlewit.”

Finally she replaced the pump, after pausing and contemplating it like it was Yorick’s skull, walked around to the driver-side door, then decided to walk back—S-L-O-W-L-Y— and make sure she had replaced the gas tank cap, then again s-l-o-w-l-y  limped and waddled back to the door. She opened the it, stared, then decided to unzip her coat, started to take it off, changed her mind, paused again. The line of cars behind me now reached to Falls Church.

I was just a smidgen of impulse control away from getting out of my car, which was turned off, and walking up to her, whereupon I would have said, not especially nicely: Continue reading →