Morning Ethics Warm-Up, 11/8/17: Featuring The Most Depressing Question You Have Heard In A Long Time. I Hope.

Good Morning!

1 Yesterday there was a fascinating article on how the famous opening chord of “A Hard Day’s Night” was (perhaps) made. I have been meaning to make a comment about the new Sirius-XM Beatles Channel, which I had occasion to listen to for many hours while being trapped in traffic jams and construction driving back and forth to Virginia Beach and Richmond, and this is a good time to post it.

I have been getting lousy, dishonest, bait-and-switch service and products with such regularity lately, ranging from an investment firm that couldn’t send the proper forms to give me access to my own money, to Verizon, which has been giving me a six-month runaround while its slooooow WiFi breaks down for days, to Progresso soup, which either decided to put what looks and feels like ground up chicken bones in its vegetable soup, or just the can I bought, that I  had despaired of again seeing anything approaching excellence for the sake of excellence  from a U.S. business until I returned to Disneyland or Fenway Park. The Beatles Channel makes the grade. It isn’t just the songs, which would have made the channel a hit all by themselves. Sirius-XM includes scholarship, history, musicology, rare recordings, interviews, celebrity and non-celebrity disc jockeys and cultural analysis, around the clock, with new programming every day. I’ve sat through college courses that were less thorough, and too many courses to count, in both college and graduate school, that were less informative and valuable. There are some things worth paying for, and products that are better than you expected!

2. The New York Times  headline after a hard day’s night for the GOP in Virginia and New Jersey: DEMOCRATS SCORE TWO BIG VICTORIES IN TRUMP REBUKE.

I’m sure it was the koi.

This is flagrant spin and distortion, and unethical journalism. The New York Times should just put “You hate the President, you know you do” on the banner. The Times didn’t call last November’s across the board rejection of Democrats in state house races and Congress an “Obama rebuke,” though it was, and the results in Virginia and New Jersey cannot be fairly pinned on Trump. The two state governors races went pretty much as everyone assumed they would months ago. New Jersey’s result, from a very Democratic state, was a predictable rejection of its spectacularly failed and detested Republican governor, and Virginia’s election of a moderate Democrat over a Republican who tried to both reject Trump while trying to hitch-hike on some of his better positions was predictable as well.

I would also guess that the Donna Brazile revelations about the Democratic Party’s corruption is not on  typical voter’s radar, so the wave of self-hating Democrats staying home that some predicted did not materialize. The Texas shooting, however, probably activated the always vigorous “The Constitution be damned, think of the children!” knee-jerk progressive block to go to the polls.

By now the Times’ routine propaganda tricks are no surprise, but the practice of attaching editorial comments connoting negative implications for the President is neither fair nor objective. But then, the news media knows this: it is attempting a coup by poisoning public opinion. This is the major ethics story—and ethics crisis—in the nation today, and has been so for a year.

3. Now a compliment to the New York Times. Finally, someone wrote an relatively honest article regarding the causes of mass shootings in the U.S. “What Explains U.S. Mass Shootings? International Comparisons Suggest an Answer” is the online version; the print edition headline is “Only One Thing Explains Mass Shootings In The United States.” Both headlines are misleading—the Times has a headline problem—but the article’s main point is correct: “The only variable that can explain the high rate of mass shootings in America is its astronomical number of guns.”

Not inadequate laws. Not enforcement. Not crazy people. Not crime. Not the NRA.

Just lots of guns.

Thank you.

The Times also correctly hints at—it could have and should have done more than hint—why we have more guns than any other country:

In the process of making a comparison between the US and Switzerland, which as the country with second highest gun ownership rate has far fewer shootings (Fun Facts! Switzerland, like Australia, isn’t the United States, and the Swiss, like Australians, are not like Americans), the Times notes,

“Swiss gun laws are more stringent, setting a higher bar for securing and keeping a license, for selling guns and for the types of guns that can be owned. Such laws reflect more than just tighter restrictions. They imply a different way of thinking about guns, as something that citizens must affirmatively earn the right to own.”

Translation: The United States protects and guarantees the inherent human right to self-defense and autonomy, and Switzerland doesn’t. In the U.S., the wise Founders, government doesn’t have to grant you the right to own a gun; you already have it. Or in other words, Switzerland isn’t the United States. (See above.) God bless America.

The Times continues under the heading “The Difference is Culture”:

“The United States is one of only three countries, along with Mexico and Guatemala, that begin with the opposite assumption: that people have an inherent right to own guns.The main reason American regulation of gun ownership is so weak may be the fact that the trade-offs are simply given a different weight in the United States than they are anywhere else.”

May be”? That’s exactly why Swiss-style “regulation”—as in “We tell you if you can own a gun and what kind of gun you ‘need., Citizen!”—isn’t an option in the U.S. The Constitution also gives the right to speech a different “weight” than other cultures do, and the amount of certainty required to send someone to prison, and when the police can search your home, and many other examples where this nation and this culture insists that individuals and individual rights come first, not government power. The fact that the United States accepts the costs of individual liberty is what makes it the United States.

There are so many guns in the U.S. because Americans like guns, and in this country, people generally can make and get what they like. They should like guns: the United States,more than others, owes its existence to guns. Our most popular entertainment involves guns. Most of all, the #2 mandate in the Bill of Rights guarantees that every citizen begins life with the right to own guns.

Mass shootings are a side effect of the Second Amendment and the core individual right to be armed. The only way to reduce such shootings is to eliminate that right and confiscate guns. Either the currently vocal anti-gun zealots understand this and are lying, or they don’t, and are ignorant.

[The National Review has some legitimate criticism of the Times data analysis, but it doesn’t affect the validity of the Times general conclusion.]

4. Here’s the depressing ethics note of the day, or perhaps the year. On the first day of jury deliberations at the bribery trial of Senator Robert Menendez, a juror asked the judge a basic question: “What is a Senator?”

I guess a necessary voir dire question or two was omitted by the lawyers .

The judge should disqualify that juror.

Ethics Observations Upon Viewing “The People v. O.J. Simpson: American Crime Story”

oj-show

I never got to see all ten episodes of last year’s ambitious and star-studded mini-series about the O.J. Simpson trial before this weekend. Thanks to Netflix, I was able to watch them all in two nights. I watched most of the televised trial at the time, so the program brought back a lot of bad memories.

Overall the production was excellent, and some of the casting was creepily good, especially Sarah Paulson  as Marcia Clark, Sterling K. Brown as Chris Darden, Kenneth Choi  as Judge Ito, Courtney B. Vance in a magnificent portrayal of Johnnie Cochran, Rob Morrow as
Barry Scheck,  Robert Morse, unrecognizable as Dominick Dunne, and Joseph Siravo as Fred Goldman. Unfortunately, Cuba Gooding, Jr., an excellent actor, is so unlike O.J. that it kept reminding us that this was a TV show. Nathan Lane and David Shwimmer also were unable to disappear sufficiently into their roles as F. Lee Bailey and Robert Kardashian. I couldn’t help thinking of “The Bird Cage” and “Friends.”

The script was  remarkably even-handed, and for the most part, accurate. However, there were three legal ethics howlers that require some exposition, as well as some other matters that came to mind.

1. The Defense’s Secret Redecoration of O.J.’s home.

In the episode “The Race Card,”  Johnnie Cochran was shown redecorating  O.J. Simpson’s house before the jury came for a judge-approved viewing. Pictures of half-nude models were replaced by benign photos of Simpson’s mother and children, and Cochran scattered pieces of African art around the rooms, taken from his own collection.

Could the lawyers do this? Of course not! It’s a visual lie, and an attempt to mislead the jury. Ito ordered that the heroic statute of Simpson in his back yard be covered with a sheet to avoid biasing the jury in favor of the defendant. Had the prosecution team suspected that Cochran had pulled such a stunt, as the dramatization suggested, it would have alerted the judge, a mistrial would have been likely, and Cochran as well as every lawyer involved would have faced serious bar discipline.

The question is, did this really happen as portrayed? Defense attorney Carl Douglas said in a Dateline NBC’s special THE PEOPLE vs. OJ SIMPSON: What the Jury Never Heard that it did, and that he organized the redecoration. Douglas said the intention was to make the estate look “lived-in and stand with all of its regalness so that the jurors would say ‘O.J. Simpson would not have risked all of this for this woman.'”  Douglas said that “photos of Simpson with white women were swapped out for pictures of him with black people. A Norman Rockwell painting from Johnnie Cochran’s office and a bedside photo of Simpson’s mother were placed in prominent view.”

Douglas should be suspended from the practice of law at the very least for this confession of outrageous ethics misconduct. (Cochran, who is dead, is beyond punishment.) Clark, Darden and Ito also failed their duties to justice and the public by allowing such a deception to warp the jurors’ perceptions. Continue reading

Judicial Ethics Quiz: The Cranky Judge

Judge Clarke (L) and artist's representation (R)

Judge Clarke (L) and artist’s representation (R)

A three-judge panel in California found misconduct in Judge Edmund Clarke, Jr’s treatment of one or more jurors in a jury pool for a murder trial.

Your challengeGuess which of the incidents was found to be an abuse of judicial power and authority.

A. Judge Clarke also told a potential juror who wrote that she had only $25 in her checking account that “every one of these lawyers spent more than that on lunch today.” He excused the juror, and after she left, Clarke told everyone in the courtroom how much the juror had in her account. When a second potential juror disclosed he had only $33 in his checking account, Clarke again announced the amount and said that his savings put the other juror “in the shade with that big account.”

B. Judge Clarke reduced another juror to tears reprimanding her after she appeared to change a form to indicate that she did not speak English, which he found incredible. She said  had lived in the United States for 25 years. Clarke said,

“Most people that have been in this country for 10 years have picked up enough English. [Twenty] or so, they’re moving right along. And 25 years is—so you better have a different reason why you want to be excused than that.” 

After she began weeping loudly because, she said later, she was ashamed because she didn’t speak English, he dismissed her from the panel.

C. Finally, Judge Clarke became annoyed at a juror who had written on her hardship form, “Having Severe Anxiety!!” next to her drawing of a frowny  face. “I work as a waitress and make minimum wages, plus I’m planning a wedding in two months and all of these things, especially this courthouse are aggravating my anxiety terribly. On the verge of a meltdown!” Clarke  excused her from jury duty,  but when she added that the clerk who was checking in potential jurors was “really disrespectful” to everyone, he  told the woman that she could stay in the hallway and tell him more at the end of the day. When the dismissed juror insisted that she had to leave, he said,

“No, you’re staying. You’re staying You’re staying on. I’ve been a judge for seven years. No one’s ever complained about my clerk. But I’ll be happy to hear your complaint at the end of the day. So go to the hall and stay and come in, act like an adult and you can face her and tell me everything she did wrong.”

The woman did as she was ordered and apologized to Clarke after waiting for an hour court to be adjourned. The judge  asked her how she would have felt if he came to the restaurant where she worked and criticized her in front of everyone, saying, 

“If you came here thinking that this was going to be Disneyland and you were getting an E Ticket and have good time, I’m afraid you have no sense of what is going on in this building. Now, seven years ago the first clerk that was assigned to me, she’s still here. The only clerk I’ve ever had. One juror, in all that time, out of thousands, has ever complained about her. That’s you. You can leave now knowing that’s what you accomplished.”

D. All of the above.

Take the poll, and then go to the answers after the jump.

Continue reading

Tsarnaev’s Irrelevant Finger And The End Of Capital Punishment

dzhokhar-tsarnaev finger

I’ve stated here several times that I am in favor of the death penalty when it can be shown beyond any doubt whatsoever that an individual committed a horrific, cruel, unequivocally inexcusable murder or murders, preferably murders. One of the two Boston Marathon bombers, Dzhokhar Tsarnaev, the surviving one, clearly qualifies. Unfortunately, the public, the law and the legal profession are too confused to bring integrity to capital punishment, and I think, because of that, it can never be sufficiently fair and coherent to be ethical. Continue reading

The “Too Handsome To Rape” Defense

Sharper, Mathis, Ted Bundy.

Sharper, Mathis, Ted Bundy.

For whatever reason, there have been a lot of attacks on the legal profession lately—and some from within the legal profession—because of so-called “disgusting” and “frivolous” arguments by lawyers who are zealously representing their clients. These range from outrage over the so-called “affluenza” defense (which, it apparently does no good to point out, was explicitly rejected by the judge in that case), to the law suit against the Glendale, California memorial to women forced into sexual slavery by the Japanese in World War II, to the argument that Red Sox broadcaster Jerry Remy was complicit in his son’s allegedly murdering his girlfriend because Remy hired a lawyer who mounted a vigorous defense in the son’s earlier domestic abuse arrests.

Lawyers are ethically obligated to advance whatever non-frivolous arguments and theories that are most likely to achieve their clients’ objectives, whether it is avoiding prison or rationalizing the crimes of the Japanese army. That is their job and societal function, and it is essential to our avoiding a jack-boot system where any of us could be thrown in jail by popular opinion or government edict. The laws are there to be used by every citizen, even when the citizen’s objectives are unethical, or when the citizen is a cur.

Our rights are all protected well by this principle, and it’s high time we stopped bitching about it.

Undeterred by this, however, yet another defense attorney is being savaged in the news media and blogosphere, as well as by women’s rights advocates, for making an argument in defense of his client that they find offensive. In Georgia, Darriuos Mathis and his legal team are making the argument, among their efforts to show that the evidence against him is not sufficiently conclusive, that Mathis is too attractive--fit, handsome, sexy– to have to resort to kidnapping and raping a 24-year-old woman two years ago, which is what he charged with.

Continue reading

More Juror Ethics

funny judgeFrom the Erie Times News:

An Erie woman, dismayed that she had been picked to serve as a juror in a weapons case, audibly harrumphed the worst curse word of them all, then huffed and puffed her way to her seat in the jury box. Erie County President Judge Ernest J. DiSantis was having none of it. When apprised of the outburst by the lawyers on the case, DiSantis came to the courtroom and called the woman, Kathleen Port, in front of the bench.

Port was off the jury, for start, DiSantis said. “But we are not done,” he said. DiSantis held Port in contempt of court and fined her $500 for the improper behavior. “You are totally out of line,” he said….Jury service is a duty of citizenship, he said.

“It is inconvenient at times,” he said.

Good.

That’s one less juror who will go on ABC to prove that her vote was meaningless and that she had no idea what she was doing.

____________________________

Pointer: ABA Journal

Ethics Dunce: The “Lady in Red”

Now that the John Edwards trial is over—it ended with an acquittal on one charge and deadlocked jurors on the rest—it’s time to heap some deserved contempt on the so-called “Lady in Red,” the alternate juror whose courtroom demeanor became such a distraction that it prompted the judge to send all the alternate jurors home. From the Washington Post:

“She walked in flipping her hair, smiling broadly at [Edwards], batting her long eyelashes, cocking her head playfully. She was just an alternate juror, but suddenly she was the most watched person in the cramped federal courtroom. Commentators had dubbed her the “Lady in Red” after she bopped into the courtroom last week in a revealing, off-the-shoulder red top. Others just called her the “flirty one,” interpreting her vivacity as some kind of courtship dance, though no one can say for sure whether that was her intent.” Continue reading

The Saga of the Racist Juror and the Angry Judge, Chapter Two: “Never Mind!”

 

"Oh! You're REALLY a racist? That's OK then...I thought you were LYING about being a racist, and I just hate that!"

When we last left Federal Judge Nicholas Garaufis, he had just sentenced a potential juror to jury duty for life because of her racist and anti-police answers on a jury questionnaire. Then many commentators, including Ethics Alarms, pointed out that punishing a woman for her views, however offensive, was an abuse of judicial power. I wrote:

 

“This was outrageous abuse of power by a judge, and a slam dunk First Amendment violation. Her opinions are ugly, but there is nothing illegal about having ugly opinions, and  government punishment based on a citizen’s opinion is a dangerous Constitutional breach. A judge can’t dictate how a potential juror thinks or what she believes. He can’t take vengeance on a woman who is hateful, either. She has a right to her hate.”

Today the judge released the woman from the lifetime sentence, saying that it really wasn’t her racist views that angered him, but rather that she had made an obvious attempt to get out of jury duty by putting offensive answers on the jury questionnaire. “My ruling was not based in any way upon whether or not you held any racist views. It was apparent you did not tell the truth,” Judge Garaufis told the woman. “You were the only juror who indicated that you had every form of bias imaginable. You were lying to the court in order to be excused.”

Ah, It wasn’t that she was a racist, but that she pretended to be a racist.

What a minute..huh? Continue reading

Alarm Failure! Racist Juror+Angry Judge=Jury Duty For Life

"You won't like me when I'm angry..."

Political correctness is now officially moving into places where it cannot be tolerated….like the courtroom.

In Brooklyn Federal Court, Juror No. 799, an Asian woman in her 20s who said she works in the garment industry, was up for jury duty in the death penalty trial of Bonanno crime boss Vincent Basciano. Asked to name three people she least admired on her jury questionaire, she wrote, “African-Americans, Hispanics and Haitians.” Elsewhere on the form she declared that all cops were lazy, and used their sirens to bypass traffic jams.

Federal Judge Nicholas Garaufis read the questionaire, questioned the woman, and declared, “This is an outrage, and so are you!” After he dismissed her as a juror on the case, he announced that she was now, until further notice, on permanent jury duty until he let her off.

“She’s coming back today, Thursday and Friday – and until the future, when I am ready to dismiss her,” Garaufis said.

Just desserts for a racist?

Proper punishment for hate?

A lesson in citizenship for all? Continue reading