Fairness to Elizabeth Warren

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

Incompetent Elected Official, Unethical Quote Of The Week, And Ethics Dunce: Democrat Rep. Mike Quigley (IL) [UPDATED]

And let me add, 

KABOOM!

“And, if gets to closed primer on hearsay, I think the American public needs to be reminded that countless people have been convicted on hearsay because the courts have routinely allowed and created, needed exceptions to hearsay…Hearsay can be much better evidence than direct … and it’s certainly valid in this instance.”

—-Rep. Mike Quigley (D-IL), making an ass of himself, misinforming the public, but nicely illustrating the lack of integrity and honesty at the heart of the current Democratic impeachment inquiry.

And how proud Loyola Law School must be to have graduated this idiot!

The Honorable Rep. is trying, I assume, to slide by the fact that much of the testimony being presented against the President is hearsay, which means, “not valid evidence.” There is a good reason for that: when what someone else says is repeated by another party as evidence of the proof of the statement’s truth, it obviously cannot be given much weight. For one thing, the actual speaker cannot be cross-examined, making the admission of such a statement as evidence reversible error. A witness can testify to what he or she heard someone else say, but that’s not hearsay.  The testimony is good evidence that the statement was made, just not that the speaker was necessarily telling the truth.

However, nobody, and no legal authority, rationally believes that “hearsay can be much better evidence than direct.” The statement is ridiculous on its face. It literally means that it is better to have someone who heard a statement testify that the statement was true rather than have the individual who made the statement.

Nor do courts “routinely” create exceptions to the rule against hearsay. The exceptions are old and well-established, and have not changed or had additions in many decades.

Here is the list from the Federal Rules of Evidence: Continue reading

Morning Ethics Warm-Up, 10/30/2019: “Happy Birthday Little Sister!” Edition

Good Morning!

Today marks the birthday of my younger sister, whom I have referred to here frequently. Growing up with her and following her life and career imbued me with an early and ongoing appreciation of the effects of sexism and pro-male bias in society, and I’m indebted to her for that. She has always equaled or surpassed me in ability and enterprise, yet often watched me receive more credit or praise for the same things she could do and did without similar acclaim. I know she resented me for that (probably still does—she won’t read Ethics Alarms, for example), and it frequently bruised our relationship over the years. She also taught me about moral luck: in general, I have been persistently  lucky, and she has not, and the difference was so evident that I learned very early in life not to congratulate myself for how the dice fell. She is finally happy in retirement, is about to welcome the first grandchild for this generation of Marshalls, her two adult children are healthy and prospering, and her beloved Nationals just forced a Game 7 in the World Series. She will have a happy birthday. Good. She deserves it.

1. Tales of the double standard, and the imaginary double standard. MSNBC and much of the progressive noise machine has decided to paint Rep. Katie Hill as a victim of a “vast right wing conspiracy,” in Hillary’s immortal phrase, and a vicious husband. If he indeed was the one who shared the salacious photos of Hill involved in various sex acts,  vicious he certainly is. But how can anyone say, as lawyer Carrie Goldberg does, that  “Katie Hill was taken down by three things: an abusive ex, a misogynist far-right media apparatus, and a society that was gleeful about sexually humiliating a young woman in power…None of those elements would be here if it were a male victim. It is because she is female that this happened’? Nonsense, and deceptive nonsense.

Hill resigned because a House ethics investigation was underway regarding her admitted sexual affair with a Congressional staffer and an alleged affair with her legislative director. She was not going to be kicked out of Congress for either or both; she probably resigned in part because she knew the investigation was going to turn up more and worse. The Naked Congresswoman Principle also played a part, as I discussed here. Does anyone really believe that equivalent photos of a male member of Congress displaying his naughty bits in flagrante delicto (my late, great, law school roomie loved saying that phrase) with both sexes would be shrugged off by his constituents and the news media? Who are they kidding?

Hill was arrogant and reckless, and is paying the predictable price, though she was not smart enough to predict it. Trail-blazers—I’m not sure being the first openly bi-sexual member of Congress is much  of a trail to blaze, but never mind—are always under special scrutiny and have to avoid scandal at all costs. Did Hill ever hear of Jackie Robinson? Allowing those photos to come into existence showed terrible judgment; using her staff as a dating resource was hypocritical for a member of the  #MeToo party and workplace misconduct too.

The fact that she is being defended tells us all we need to know about the integrity of her  defenders. Continue reading

Saturday Ethics Pitch, 10/26/2019: Calvin Coolidge Was Right, Baseball is Wrong, And Other Revelations

Here it comes!

1. Oh-oh...I was worried about this. Early in the baseball post-season there were rumors flying that MLB had deadened its baseballs after a 2019 season that saw records shattered for homer frequency. I wrote (somewhere this month: I can’t find it) that if the sport really did mess with the balls at this point it would be a massive breach of ethics, changing the conditions of the game when the games mattered most.

So far, the conspiracy theorists have been bolstered by the statistics.

 Baseball researcher Rob Arthur revealed in a Baseball Prospectus report on October10 that after nearly 20 postseason games, home runs were occurring at at half the rate the 2019 season’s homer frequency would predict. Arthur allowed for the fact that better pitchers and hitters  made up  playoff teams, and still  concluded that the ball was not flying as far as it did during the regular season. “The probability that a random selection of games from the rest of the regular season would feature as much air resistance as we’ve seen so far in the postseason,” he wrote, “is about one in one thousand.” A follow-up report by Arthur again found significant variation in the flight of the ball this postseason.

This isn’t good.

2. It’s not even 2020, and the New York Times isn’t even pretending  to be objective. Two examples from today’s Times:

  • In a story about Tulsi Gabbard announcing that she would not run for re-election to the House, the Times spun for Hillary Clinton, writing, “Last Friday, Hillary Clinton suggested that Republicans were “grooming” her for “a third party run”, though Ms. Gabbard has denied any such plans.” What was notable about Clinton’s smear was that she said that Gabbard was “a favorite of the Russians. They have a bunch of sites and bots and other ways of supporting her so far.”  This is a variety of “fake news” that the Times excels at, telling only part of the story to manipulate public perception.
  • Headline (Print edition) : “Speaking at Black College, Trump Ridicules Obama For Effort on Racial Equity.”  Wow, what a racist! Attacking efforts at racial equity! In fact, the President criticized the paltry results of Obama’s efforts to advance racial equity. He in no way ridiculed Obama for making those efforts.  Again, the Times is now a master at playing to its anti-Trump readers confirmation bias.

Continue reading

Monday Morning Summary Of What Would Have Been In The Sunday Ethics Warm-Up That I Was Supposed To Post But….Aw, Forget It. Here’s Some Ethics Stuff…

Good morning.

Boy, am I glad THAT week is over.

1. Moral luck saves the 2019 baseball post-season…for now. MLB missed a major disaster when an umpire missed a clear strike three (he ruled a foul) on Yankee slugger Gary Sanchez in a tied and crucial game between the Houston Astros and New York.  It was the 11th inning, meaning a tie-breaking run would mean a likely Yankee victory.  THAT would have meant that the Astros would have lost the first two games of a seven game series at home, a hole that very few teams in baseball history have been able to overcome.

Sanchez  struck out on the next pitch, and a Carlos Correia home run in the bottom of the inning sent the Astros to Yankee Staudium in a series tied 1-1. The botch was moot, and will soon be forgotten. But if he Sanchez hit a home run or otherwise led the Yankees to a decisive score, the ALCS might have been completely turned by a blown call captured on video for all to see.

And there would be no excuse: the rules allow no appeal on that kind of play, but there has to be.

Yes, it was “moral luck” again. The fact that the worst didn’t happen doesn’t change the seriousness of the fact that only luck saved the day and prevented a blot on the integrity of the whole 2019 post-season. Maybe it would have been better if the bad call had altered the game, the series, and the World Series. Maybe then baseball would stop waiting for the high-profile disaster caught on video that will force it to have ball and strikes called by technology. It took an umpire’s obvious blown safe call in what should have been the last out of a perfect game to make baseball go to replays, and anyone who watches many games knows how many times a reversal changes game outcomes. Continue reading

Ethics And The Joker’s Moustache

“The Joker,” opening this week and presenting Joaquin Phoenix’s portrayal of Batman’s arch-enemy as fitting the classic mass-shooter profile, has provoked all sorts of ethics- related debates. Is it responsible to release a film that may risk triggering the psychopathic loaners with access to guns we all know lurk in the shadows? Is the studio risking another Aurora-style theater shooting? Should such films be boycotted? Regulated?

These debates, which are retreads of the same old refrains the nation has been tortured by since dime novels through Warner Brothers gangster movies, EC comics, “The Untouchables” TV series, the Legion of Decency’s reign, Sam Peckinpah films and “A Clockwork Orange,” are all appeals to censorship using “Think of the Children!” rationalizations, and are essentially attacks on free speech. The contrived debate is alarming but not difficult to call: the would-be censors are wrong, motivated by emotion, and that’s that.

No, the really interesting ethics debate the new movie has revived is another old one: Was it ethical for actor Cesar Romero to keep his moustache when he played the Joker?

Cesar  Romero  (February 15, 1907 – January 1, 1994) is now largely forgotten, but he was a familiar presence in films, radio, and television for almost 60 years. Sort of a Grade B Riccardo Montalban, Romero had a rather narrow range, with his portrayal of dashing Latin lovers, historical figures in costume dramas, and characters in light  comedies all looking and behaving similarly. Romero’s trademark was his moustache, especially in the post-Errol Flynn era when leading men seldom wore them.

When the 1966 camp TV show Batman became a brief sensation in 1966, the casting of Romero as the Joker was a shock. He had never played any role remotely like it, nor was broad, silly comedy his typical milieu. Most shocking of all, when the Joker finally made his appearance on the show  it was obvious that Romero hadn’t shaved his upper lip. Reportedly the actor refused to eliminate  his moustache for the role, and so the supervillain’s white face makeup was thickly smeared over it throughout the series’ three-year run and for Romero’s co-starring appearance in the 1966 film. Continue reading

Baseball Ethics: Integrity, Records, And The “Juiced Ball”

 

The Boston Red Sox didn’t make the play-offs (and made me physically ill in the process), but that doesn’t mean I won’t find some baseball ethics to write about during October, which will cover the play-offs and World Series involving  five teams from each league. Some weeks ago commenter JutGory asked about the ethics implications of the so-called juiced baseball. and I was not in a mood to think that seriously about baseball, since the Red Sox were engaged in the final throes of an epic, inexplicable, season-long choke that, among other bad things, soured my wife on the game, undoing years of careful nurturing by me. I’m OK now, and Jut was right, the juiced ball does raise ethics issues.

Early on in the 2019 season, it was obvious that the ball was different somehow. The very first month had more home runs than is normal in the spring, and the phenomenon only got more extreme as the weather got warmer. Pitchers like Houston Astros ace (and likely Cy Young winner as the AL’s best pitcher) Justin Verlander and former Cy Young winner David Price called out MLB management directly, accusing them of messing with the ball to help the hitters. Baseball’s brass denied it initially, but eventually they had to admit that something was weird about the balls.

Researchers  confirmed  that the 2019 ball was traveling farther when hit with the same amount of force than the balls in seasons past. The change was determined to be that the balls’ seams were flatter, less raised, than they had been before. This reduced the drag when they were flying through the air, resulting in longer distances.

How and why this happened is  a mystery. Major League Baseball swears it was an accident,  but nonetheless the sport is completely in in control of the manufacturing of baseballs. It owns the company that makes them. The current theory is that this was a quality control issue or, perhaps, a quirk in which eliminating a flaw in the balls made them too uniform, too exact.

Among the ball’s many specifications, the degree to  which the stitches were raised had never been included. Continue reading