law vs ethics

The Rest Of The Story: “The Baby On The Album Cover: Dumb Lawsuit, Valid Ethics Point”

/ Jack Marshall / Leave a comment

Last August, I wrote about Spencer Eldon’s “Hail Mary” lawsuit against the surviving members of the band Nirvana over their use of his baby photo (which his parents received compensation for) in an iconic album cover above for “Nevermind.” The verdict here was that the lawsuit was doomed, he was greedy, and the law supported the band. However, I also wrote,

...Nonetheless, parents who use their children for public display are engaging in unethical conduct. Yes, they have the legal right to do it, and no, there is virtually no chance that any law will be passed banning what I consider to be child exploitation and low-level, but still unethical, child abuse. My wife and I have been watching the long-running British TV series “Call the Midwife,” and every episode requires one or more infants who are forced, without their consent, to endure the stressful experiences of playing newborns or sick baby’s under lights, in the arms of strangers, often covered with fake blood.

Elden might be insincere and the lawsuit is probably hopeless, but he’s not wrong in one respect. “[When] I go to a baseball game and think about it: ‘Man, everybody at this baseball game has probably seen my little baby penis,’” he said in one interview. “I feel like I got part of my human rights revoked.” Not rights, never rights: parents will always have the right to inflict indignities, publicity and stress on their minor offspring for fame and fortune. From the Coppertone girl to Linda Blair to “Mikey” and the kid in “The Shining,” they have all been unethically exploited by their parents, just like Spenser Eldon, without informed consent.

It’s legal, but it isn’t ethical.

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A Brain-Blowing Ethics Quiz To Enliven Sunday: Joseph Gordon’s Parole

/ Jack Marshall / 6 Comments

Joseph Gordon

In the midst of a flurry of wrongfully convicted black men finally given their freedom comes the perplexing saga of 78-year old Joseph Gorden, locked up in New York’s Fishkill Correctional Facility since 1993 for a murder he says he didn’t commit. But that, as they say, isn’t the half of it.

Last March, Gordon was denied his fifth application since since 2017, when he had served the minimum term of his sentence of 25 years to life in prison. The reason he is still incarcerated is simple: he refuses to express remorse for the 1991 murder of a white Westchester County doctor, because Gordon insists that he is innocent. Usually a parole board will not waive the remorse requirement, which—and this is not the ethics quiz!– presents a classic ethical conflict for defense lawyers.

A lawyer cannot advise a client to lie. That is a bright-line professional ethics edict of long-standing. A lawyer is also required to defend a client’s rights and fight for his or her interests as zealously as possible. Would you, as a lawyer, convinced of your client Joseph Gordon’s innocence, advise him to express remorse to the parole board, which would require a false acceptance of the jury’s verdict? Many lawyers have done exactly this, and would argue that they did the right thing. Their bar associations and courts would almost certainly disagree.

I digress, however; sorry. That problem has always fascinated me. My favorite version is when the lawyer knows the convicted client is not guilty because another one of his clients has confessed to the murder, a confidence that the lawyer cannot ethically reveal.

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Tales Of The Slippery Slope: Paroling Sirhan Sirhan

/ Jack Marshall / 5 Comments

RFK assass

Newly elected Los Angeles County District Attorney George Gascón issued a directive that his office’s “default policy” would be not to attend parole hearings and to submit letters supporting the release of some inmates who had served their mandatory minimums. Now Sirhan B. Sirhan, the convicted assassin of Sen. Robert F. Kennedy, will be a beneficiary of the policy as he faces a California parole board for the 16th time tomorrow. in a prison outside San Diego. Unlike the first 15 times, no prosecutor will oppose his release.

Sirhan is now 77. He escaped execution when California, being California, abolished the death penalty and his sentence was reduced to life with the possibility of parole. Instead of death, then, his punishment for murdering a possibly transformational U.S. political leader might be only 53 years behind bars. It could have been fewer: under the California law in effect when the assassin struck in 1968, a life sentence with parole would have made Sirhan eligible for release after only seven years. Now the parole board will evaluate him as an inmate who has had no disciplinary violations since 1972, and has expressed remorse, sort of: at one, “I have feelings of shame and inward guilt … I honestly feel the pain that [the Kennedys] may have gone through.” On the other hand, he has never expressly admitted his guilt and now claims not to remember shooting Bobby.

Funny, you’d think he would recall something like that.

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The Baby On The Album Cover: Dumb Lawsuit, Valid Ethics Point

/ Jack Marshall / 8 Comments

Naked baby cover

Thirty years ago, Spencer Elden, age four months, was photographed by a family friend naked and floating in a pool at the Rose Bowl Aquatics Center in Pasadena, California. The striking and cute photo was then sold by his parents to be the cover of “Nevermind,” the rock band Nirvana’s second album that shot the Seattle band to international fame. (Never could stand Nirvana myself.)

Through the years Elden pretty much exhausted the opportunities to exploit his accidental celebrity, recreating the wet, wild and adorable moment for the album’s 10th, 17th, 20th and 25th anniversaries (but not with his naughty bits exposed, of course) “It’s cool but weird to be part of something so important that I don’t even remember,” he said in an interview with The New York Post in 2016, in which he posed holding the album cover at 25. Eldon even reportedly has “Nevermind” tattooed on his chest.But this year he needs money, or has a change of heart, or met up with an unethical lawyer, or something. Now Elden is suing Nirvana for damages, claiming his parents never signed a release authorizing the use of his image on the album, and more provocatively, that his nude infant image constitutes child pornography.

“The images exposed Spencer’s intimate body part and lasciviously displayed Spencer’s genitals from the time he was an infant to the present day,” legal papers filed in California claim. Lasciviously? The album cover indeed showed Elden as a baby with his genitalia exposed. Maybe it also made tiny Spencer seem greedy, since the graphic artist added a digitally added dollar bill on a fishing line, leaving the impression that the tot was trying to grab the dollar.

Of course, he IS greedy now.

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Sounds Fun, But Is It Shakespeare?

/ Jack Marshall / 10 Comments

“The Merry Wives of Windsor” in Central Park is a “Critic’s Pick” by the Times theater reviewer Jesse Green. We learn that William Shakespeare’s “comedy of clever women, frail men and harsh revenge” has been “shaped” into one of “love and forgiveness.” We are informed that a drummer from Zimbabwe leads the audience in a call and response chorus of vernacular African salutations: “Asé” (Nigeria), “Yebo” (South Africa) and “Wau-Wau” (Senegal) among them. We are informed that the adapter has cut the number of characters in “The Merry Wives of Windsor” nearly in half, and that the running time is more than a third shorter than the Bard’s 1597 comedy.

Yes, and the “adaptation” apparently eliminates much of Shakespeare’s wordplay, including politically incorrect words like “master” and “mistress,” which Green says have “buzzkill implications.” Gone too are “misogynist references.” Predictably the setting is no longer England, or Windsor, but Harlem: it is difficult to find a a production of any Shakespeare play today that has any connection to the original in time or space.

The director and adapter have also “made several adjustments to embrace queerness where the original used it merely for humor.” Of course.

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For Ethics Alarms, The Controversy Over The Unmarried Pregnant Art Teacher Is An Easy Call

/ Jack Marshall / 6 Comments

pregnant teacher

I lost an ethics training client over the issue now raising its ethically-muddled head in New Jersey. Several years ago, during a day long seminar I taught for a teachers association, I stated that a teacher who taught grade school, middle school of high school students while pregnant and unmarried was harming her students, and that responsible school were ethically entitled to make pregnancy outside of marriage grounds for dismissal. Literally all of the attendees were outraged (even the two men in the group), though none could articulate a valid argument against what I said. (“The right to choose!” is not a valid argument in this context.)

I was right, they were wrong. The controversy now over a Catholic school art teacher who is demanding that she should have been able to keep her job despite being pregnant is much easier, or should be.

Victoria Crisitello was an art teacher at the New Jersey’s St. Theresa elementary school in Kenilworth. In the course of negotiating for a raise, she mentioned that she was having a baby. Weeks later, she was fired by the principal, a Roman Catholic nun, who explained that she was being terminated “because she was pregnant and unmarried.” “Sex out of wedlock violates a fundamental Catholic belief that the school in this instance felt it could not overlook,” lawyers for St. Theresa’s wrote in a petition to the state Supreme Court. Crisitello’s lawsuit was tossed out by two trial court judges, only to be restored each time when an appeals court sided with the ex-teacher. Now the state’s highest court, acting on an appeal by the school, has agreed review the case, which raises the continuing thorny question about the relationship between the government and religion.

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Law vs. Ethics #1: Harvard Screws Over Its Students, But It’s All Legal, So There

/ Jack Marshall / 11 Comments

Harvard welsome

Two rueful thoughts before I begin:

  • One of my college graduating class’s big reunions is next year. Harvard always does an amazing job of throwing a party (having a bank account larger than the treasuries of some countries let you do that , I have many friends and room mates I yearn to see again, and I haven’t been back home to Boston in 17 years. But I’ll be damned if I’ll honor Harvard with my presence. It has been an ethics disgrace consistently for several years, and I am ashamed of my association with the institution, as well as my family’s association (my father and sister graduated from the college, and my mother worked there for over 20 years, culminating in her becoming an assistant dean.)
  • I could really enlighten NPR’s listeners about the difference between law and ethics in this case, if I hadn’t been blackballed for daring to explain how accusations of sexual harassment against public figures like Donald Trump were not necessarily fair even if they were sincere. Oh, well—NPR can bite me.

With that introduction, be it known that in the case of Barkhordar et al v. President and Fellows of Harvard College,  Harvard University won a dismissal today of a lawsuit by students over its decision not to partially refund tuition when it evicted students from dorms and moved classes online early in the Wuhan virus pandemic. Continue reading →

Ethics Reflections And Questions On The Chauvin Verdict, Part I

/ Jack Marshall / 34 Comments

I haven’t read much commentary on yesterday’s verdict yet. I’m assuming that I’ll have more observations later in the day.

1. Ultimately, it appears that the jury just decided that it wasn’t worth it to acquit Derek Chauvin even if there was reasonable doubt. That’s sad, but the calculation can be defended on utilitarian grounds, meaning that, ironically, the arguably unethical decision to discard the law, individual rights, a fair trial and the integrity of the justice system might have been an ethical decision because it will cause less harm in the long and short run. In other words, it can be defended as a decision in which ethics won and the law lost.

I’m not saying that I would defend it that way, but I acknowledge the argument as respectable.

2. It is important to remember that cases where verdicts were based on emotion, human nature, and sociopolitical dynamics rather than the evidence and strict adherence to the law have occurred periodically, and will continue to do so.

The Nuremberg Trials were travesties from a legal standpoint, and the verdicts “ethical” only in the sense that a formal, solemn statement that some conduct is so heinous that civilization has an obligation to reject it was deemed more important than such niceties as avoiding hypocrisy or respecting the law’s aversion to ex-post facto legal penalties. The trial of the alleged conspirators to murder Lincoln was as rigged as a trial can be. This isn’t an “it happens all the time” excuse for the Chauvin trial, but a reminder that the Chauvin case isn’t the cataclysmic scar on the justice system that many will claim it is.

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Remembering Arturo Di Modica, The Artistic Ethics Train Wreck

/ Jack Marshall / Leave a comment

Talented and bold artist? Shameless self-promoter? Hypocrite? Unethical jerk? Arturo Di Modica, the Sicilian-born sculptor who died earlier this year was all of these. He was also a one-man ethics train wreck.

In mid-December of 1989, the artist illegally dropped his “Charging Bull,” a 3.5 ton bronze sculpture (that’s a similar model he had mounted in China above), in Lower Manhattan one night in 1989. He claimed it was a gift to his adopted country, the United States, urging courage and defiance after its 1988 financial collapse. Maybe. Or he just wanted to grandstand and get publicity. Either way, you cannot put a giant statue in a public place without permission, permits, owning the property involved, little things like that.

This was a planned crime. Di Modica spent weeks prowling the Wall Street area after midnight, noting when and where police officers walked by. He had about forty accomplices waiting at around 1 a.m. when he loaded his sculpture onto a flatbed truck and drove to Broad Street, next to the Stock Exchange. But it was nearing Christmas, and the Stock Exchange had put up a huge Christmas tree where he had planned to drop “Charging Bull.”

So he put it under the tree.

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Law Vs. Ethics: The Minnesota Supreme Court Rules That Even A Stupid Law Has To be Followed

/ Jack Marshall / 10 Comments

Law Ass

And the Court is right! But this is a really stupid law. According to Minnesota law, “‘mentally incapacitated’ means that a person under the influence of alcohol, a narcotic, anesthetic or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.”

Wait, what? Does that really mean that a woman who is incapable of thinking straight or fighting off an amorous creep intent upon getting some cheap sex is mentally incapacitated and incapable of consent if she has been made blotto by a date who kept telling her she was drinking non-alcoholic punch that was really laced with vodka, but if she drank the exact same amount knowing what was in the punch, she isn’t “mentally incapacitated” even if she can barely speak or move to defend herself?

It does indeed. The law is, some Brit memorably said (but not Charles Dickens), an ass.

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