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

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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Ethics And Those Wacky Cuomo Boys, 2: Andrew And His Book

Chris’s scandal may be more embarrassing, but Andrew’s latest problem may be more expensive.

In July 2020, then-New York Governor Cuomo, riding high in the public eye, asked the state ethics panel for permission to write a book about his leadership during the pandemic.

I must interject here that such books are virtually always unethical, often in multiple ways. I say “virtually” because there really may be some instance, buried deeply in the sands of time, when a book written while a popular elected official (or a First Lady) was in office and published with that official’s name as the author was really written by the official in his or her spare time, wasn’t just a government-funded campaign and propaganda tool, and also didn’t provide a way for supporters both individual and corporate to launder contributions. Maybe, but I doubt it.

For one thing, if an elected official spends any time at all writing a book during his or her work day, he or she is getting paid by taxpayers to do work that primarily benefits the official. Books are hard. Books take time. Trust me on this, I’ve co-written one, and would have five more (I have the titles and outlines!) out there if I could get out of my own way. But my time is my own: I don’t bill clients for writing this blog, and any time I spend writing a book is time I don’t get paid for. Governors, like Presidents, are paid to be on-duty every waking hour.

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Dispatch From The Great Stupid, Judicial Division

Duran

Let me preface this absurd episode by saying that it makes no sense whatsoever, not ethically, not logically, and certainly not legally.

Craig Doran, the chief judge of the region that includes Rochester, New York, has resigned from his administrative judicial duties because an old photograph turned up from 1988 when he was a second-year law student. It was, yes, from a Halloween party, and showed him costumed as a “well-known public figure of color.” We aren’t even told who in any of the media reports. In case your calculator isn’t handy, that was 33 years ago.

Since his graduation from law school, Doran has had a stellar career. Elected in 1994 to represent New York State’s 129th Assembly District in the State Legislature, he was appointed Supervising Judge of Family Courts in the Seventh Judicial District in 2006. . In 2011, he was appointed Administrative Judge of the Seventh Judicial District, making him the chief supervisor of all Courts in an eight-county region. He has also been the Presiding Judge of Drug Treatment Courts, a member of the NYS Permanent Judicial Commission on Justice for Children, has served as Chair of the Judicial Commission on Interbranch Relations, Co-Chair of the NYS Juvenile Justice Strategic Planning Advisory Committee (advising the Governor on statewide juvenile justice policy), and as a member of the Office of Court Administration Raise the Age (RTA) Task Force. Judge Doran was selected to serve on the Judiciary Task Force on the Constitution, and the Judicial Commission on Parental Representation, and has also been active as a law professor at the University of Rochester and at Keuka College. He serves as an Adjunct Professor at the former, teaching upper level classes in the Legal Studies, and with the latter in the Adult Studies Criminal Justice Bachelor and Master’s Degree Programs, and also as an Instructor Expert for the Center for Professional Studies and International Programs at Keuka.

Never mind: what’s really important is what he wore as his costume at a law student Halloween Party.

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Re Rudy Giuliani’s “Interim Suspension”

rudy_giuliani_ap

New York’s Supreme Court took the draconian step of suspending Rudy Giuliani, former federal prosecutor, former mayor of New York City, and counsel to former President Trump, from practicing law based on his statements, allegation and, in some cases, presentations in court and court documents, regarding the 2020 election and his clients claims that it had been “stolen.” From the opinion:

“For the reasons that follow, we conclude that there is uncontroverted evidence
that respondent communicated demonstrably false and misleading statements to courts,
lawmakers and the public at large in his capacity as lawyer for former President Donald
J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection
in 2020. These false statements were made to improperly bolster respondent’s narrative
that due to widespread voter fraud, victory in the 2020 United States presidential
election was stolen from his client. We conclude that respondent’s conduct immediately
threatens the public interest and warrants interim suspension from the practice of law,
pending further proceedings before the Attorney Grievance Committee (sometimes AGC
or Committee).”

Note that Giuliani has been suspended before the completion of an investigation of the claims against him, or a hearing, based on a conclusion that the public is literally endangered by the possibility of his continuing to make the same claims that former President Trump and many others are making in public every day. The stated justification for the extremely rare interim suspension never explicitly made clear: exactly what is the danger to the public that justifies this? The Supreme Court of the State of New York is simply continuing the false narrative that there was a “violent insurrection” by misled members of the public on January 6 caused by the insistence of the President and others that the election was stolen by the Democrats, and Trump was really elected. Indeed, the Court writes,

“One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021, at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC [Attorney Grievance Committee] contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol.”

I shouldn’t have to point out that neither Trump nor any non-lawyers making the “stolen election” claim t have been or can be punished by the the Courts or the government, but the New York Bar’s Rules of Professional Conduct can be used to do just that to Giuliani for serving a client the judges don’t like (they are all Democrats). To justify this, the opinion uses the fact that a lawyers’ speech is more subject to regulation than normal citizens because of their “persuasiveness,” supposed trustworthiness as members of a profession that is forbidden from lying, and bootstraps its argument by noting that the real purpose of the Rules us not to punish lawyers, but to protect the public. That is true, but the purpose is to protect the public from being represented by bad and untrustworthy lawyers, or substantively harmed by lawyers assisting criminal or predatory clients, not to muzzle lawyers from making controversial statements in the public square.

This case has been the subject of much debate by my legal ethicist colleagues of late, with a depressing near-consensus that Rudy is getting what he deserves. This is because, I detect, the vast majority of lawyers cannot see through their political biases and Trump hate. At the most simple level, the ruling is premature because contrary to the Court’s certitude, all of the evidence is not in, though the claim that there was widespread election fraud and that the election was “stolen” has for many months been pronounced “a lie” by Democrats and the mainstream media with suspicious vigor. While the opinion makes a convincing case that many of Giuliani’s statements, including some made to courts and government bodies, were careless, sloppy, badly sourced, unprofessional and wrong, it cannot know at this point that his (or Trump’s) general claim is false. If its is not false, then raising doubts among the public cannot be called dangerous to the public. It is more dangerous to keep opinions, arguments and ideas from the public’s awareness “for their own good.”

Thus this is a First Amendment problem. Except for one assertion about the status of a complaint, which he later corrected, Giuliani is not accused of improprieties in court proceedings where he functioned as an advocate. The Court’s focus is almost entirely on Giuliani’s public statements on the radio, in podcasts, on TV shows and news interviews. Alan Dershowitz, along with Jonathan Turley among the very few well-known lawyers (and Democrats) who have managed to maintain their integrity during the nearly five-year attack on Donald Trump, reacted to the interim suspension by telling Breitbart (which I will not link to after being burned to many times),

“I taught legal ethics for, I don’t know, 35 years at Harvard Law school. I think of myself as a leading expert on legal ethics. I’ve never ever seen a case where a lawyer was essentially disbarred … without a hearing. The most basic concept of due process is you don’t deprive somebody of his living, of his freedom, of his ability to work without a hearing. And then the criteria under which they suspended his law license is so vague. It says in the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person. In other words, if he goes on your show, or he goes on my podcast, or he goes on Fox or anywhere else, and he makes a statement which turns out to be false, and he had reason to believe it was false, he could be disbarred. Do you know how many lawyers we’d have left if we applied that standard across the board? … We have case after case after case where prosecutors, defense attorneys, lawyers of every kind, have made statements … which turn out to be untrue, and they’re never disbarred. And certainly not without a hearing. And so, this is a first. …The atmosphere is such today that if you defended President Trump in any way, they’re out to get you. And they’re certainly out to get Rudy Giuliani.

In other words, the suspension is a politically motivated silencing. I strongly suspect that anti-Trump bias was at the heart of this slap at Giuliani, as Dershowitz says. Turley, in a piece for The Hill, expressed similar concerns:

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Valentine’s Day Ethics Warm-Up: “Ya Gotta Love Ethics!”

valentines-day-hearts-9

I’m going to see if I can get through this entire post without mentioning yesterday’s acquittal of Donald Trump. There’s a whole other post around the corner for that. Let’s see.

I was sorely tempted to post the simple word “Good!” to my Facebook feed, but resisted the temptation. All it would have accomplished was to trigger some genuinely, or at least formerly, nice and reasonable people….who have nonetheless been smug, abusive, irrational, nasty, obsessed, hateful and harmful to the culture and society since November 2016. And as much as the Duke in “McClintock!” is an inspiration…

…I won’t. At least, not right now.

1, And the audacious hypocrisy continues! To a ridiculous and childish extent, too. Here’s Dr. Jill Biden’s kindergarten-style, “do as we say not as we do,” signaling-virtue-while-not-actually-engaging-in-it White House lawn display.

Biden diaplay

How nauseating.

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Saturday Ethics Aftermath, 11/14/2020: Art And Ethics

Brussels statue

1. Movie plot ethics. It’s clear that I have watched far too many movie and TV programs. I am now at the point where certain routine plot and directorial devices not only annoy me, they insult me. I regard these now as disrespectful and incompetent, and in that sense, unethical. I’m not talking about the cliches that still work with the young and uninitiated, like how the apparently dead/injured/ betrayed/ rejected or abandoned character you forgot about is always the one who shows up to save the day. (Among the reasons I love the “Magnificent Seven” so much is that when the one member of the team who had quit shows up to rescue his pals in the final gun battle, he is shot and killed immediately.) I’m referring to tropes that are self-evidently stupid and should seem so for any viewer over the age of 12.

For example,  if there’s a vicious, murdering psychopath chasing you, and you knock him cold with a steel pipe or incapacitate him in other ways, you don’t assume he/she/it is dead and leave the killer there to revive and slaughter you. You make sure the manic/monster is dead. Beat his head to a pulp; heck, cut it off.  This is often paired with another idiotic scene, the ill-timed hug. The world is going to blow in seconds, zombies are coming, crazies are beating down the door: save that passionate embrace for later, you morons! The same applies to long, emotional conversations in the midst of disasters when every second counts. Which is worse, I wonder: the long debate in “Armageddon” between Bruce Willis and Ben Affleck when they have literally seconds to save the Earth from an asteroid apocalypse, or the even longer argument among three fire fighters in the middle of a burning building?  That was in “Backdraft,” and I never quite felt the same about director Ron Howard after that.

2. Statue ethics again.  A new London  sculpture dedicated to Mary Wollstonecraft, the 18th-century writer and feminist hero (and the mother of Mary Shelley) is attracting much hate from art critics and the public.

MW memorial

The work by the British artist Maggi Hambling features a small, naked woman standing on a pillar silvered bronze, set on a cube of dark granite. The overall form is just larger than an average person, and sits well with the park: “Why is Mary naked?” critics are demanding. One Twitter user said: “I had no idea Mary had shredded abs.”

Morons. Read the statue’s base: “For Mary Wollstonecraft, 1759-1797.”  This is not intended to be a likeness of, but a tribute to,Wollstonecraft, whose most famous quotation from her “A Vindication of the Rights of Woman,” published in 1792, appears on the other side of the base:  “I do not wish women to have power over men; but over themselves.”

Before one starts criticizing anything, it is essential, fair and responsible to know what one is talking about. Every day I send to Spam Hell comments from Ethics Alarms critics who obviously didn’t read the post they are commenting on. I once went to great lengths to get a local theater critic fired who reviewed a show I directed after I saw her walk out before the second act.

On the other side, as a stage director who made being clear my prime directive, I hold the artist partially responsible when a large proportion of viewers don’t understand what is being communicated.

3. Then there is this:

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Saturday Ethics Warm-Up, 8/15/2020: Of Cancellations, Retractions, Rants, Lies And Signs

Never mind the small talk; let’s get to it.

1. Hmmm…What’s going on here?  New York officials originally decided to cancel  “‘Tribute in Light,” the  twin beams that shine over lower Manhattan as part of the annual  9/11 commemoration. The National September 11 Memorial & Museum, which oversees the installation, said in a statement this week,”This incredibly difficult decision was reached in consultation with our partners after concluding the health risks during the pandemic were far too great for the large crew required to produce the annual ‘Tribute in Light.'”

The announcement caused widespread puzzlement. How large could the necessary crew have to be? Geraldo Rivera opined on Fox News that the decision was political, as Democrats sought to “make everybody miserable” so President Trump could be blamed. That theory was quickly picked up by others, along with complaints from New Yorkers that the popular memorial celebration was cancelled for no good reason.

Then, today, New York officials made a U-turn. “Honoring our 9/11 heroes is a cherished tradition. The twin towers of light signify hope, resiliency, promise and are a visual representation of #NewYorkTough,” Cuomo said. “The virus has taken so much and so many. But now the tribute will continue.”

2. Now THIS is Trump Derangement! When did it become considered acceptable and professional for news anchors and public events show hosts to behave like this?  MSNBC “Morning Joe” co-host Mika Brzezinski went on an extended, fanciful, hateful anti-Trump rant on yesterday’s broadcast. Here’s a transcript of a supercut video featuring the bulk of Mika’s meltdown: Continue reading

Maybe You CAN Fool All Of The People—80% Anyway: The Andrew Cuomo Anomaly

New York Governor Andrew Cuomo really does have “blood on his hands,” but thanks to the news media coverage, the public doesn’t seem to care.

In March, Cuomo, already overseeing the state that is the one U.S. local where the Wuhan virus could then be accurately described as out-of-control, adopted the policy of forcing nursing homes to take in elderly residents who were infected.

The edict horrified  many medical authorities.  Health experts warned  this was a formula for disaster because such facilities didn’t have the ability to properly quarantine the infected. “This approach will introduce the highly contagious virus into more nursing homes. There will be more hospitalizations for nursing home residents who need ventilator care and ultimately, a higher number of deaths. Issuing such an order is a mistake and there is a better solution,” American Health Care Association President and CEO Mark Parkinson protested in March after Cuomo’s order went into effect.

Richard Mollot, executive director of the New York’s Long Term Care Community Coalition, said that the policy “put many people in grave danger.” Professor David Grabowski at Harvard Medical School, whose field is public health, was aghast, telling NBC,  “Nursing homes are working so hard to keep the virus out, and now we’re going to be introducing new COVID-positive patients?”

Yes, that was the  plan, but it is difficult to fathom why anyone would think it was a good idea. A lot wasn’t and still isn’t understood about the virus, but one thing that has been known all year is that it is especially deadly for the elderly and people with compromised immune systems.

‘Hey, let’s put all those discharged old people who we know are infected into cramped, confined nursing homes where trying to quarantine anyone is hard and where we already know dubious management and care is rampant!’

‘BRILLIANT!’ Continue reading

I Knew You Were All On Pins And Needles Waiting For The Resolution Of This Story, So..

It was almost exactly two years ago when I noted in a Morning Warm-Up that District Court Judge Robert Cicale of Suffolk County New York was arrested for breaking into the home of his  23-year-old former intern  on multiple occasions and stealing panties from her laundry hamper. His Honor was arrested in March 2018 as he was leaving the woman’s house with with his pockets filled with her awaiting-to-be-laundered delicates.  The 49-year-old married father of three was charged with burglary in the second degree.

Calling the  case “highly disturbing,” the prosecutor said at the time, “This is an individual who swore to uphold the law and violated it in a very serious way.The message here, both from the Suffolk County Police Department and the Suffolk County District Attorney’s Office, is that no one is above the law.”

You mean judges can’t break into the homes of former female interns to steal their panties and do god knows what with them? Who knew? Damn those obscure ethics rules… Continue reading

Morning Ethics Warm-Up, 3/9/2020: Coronavirus Ethics And A Pop Ethics Quiz

You’re looking lovely today, I must say! Why haven’t I fallen in love with you yet?

Fortunately, I’m almost always “self-quarantined…”

1. Ethics tales of Covid-19:

  • Ethics Hero: Senator Ted Cruz has just made a point of serving as a role model by self-quarantining in his Texas home because he interacted with a person at the Conservative Political Action Conference who, according to Maryland heath officials, tested positive for coronavirus, . Cruz says  he had only a brief conversation and shook hands with the person, and that  the contact took place ten days ago. Cruz  isn’t experiencing symptoms, and the odds are low that the virus passed to him.

Nonetheless, a public example from a prominent figure of using an abundance of caution can only help.

  • On the other side of the Covid-19 ethics divide, we have the father-daughter pair,  family members of the St. Louis County woman who tested positive for COVID-19 as the first confirmed carrier of the virus in Missouri, who attended a father-daughter dance at the Ritz-Carlton in Clayton, Missouri, after being told by health officials to be like Ted.

St. Louis County Executive Sam Page told reporters that the family understood what they had been instructed to do, and just ignored the directives anyway.

Again I ask, what is the appropriate way to punish people like this? All plagues and epidemics spread this way, with the unhealthy contribution of idiots. Mary Mallon, aka Typhoid Mary, was an Irish cook at the beginning of the 20th Century who kept escaping authorities as an asymptomatic carrier of the deadly disease, and going back to work under false names. At least three deaths are definitely blamed on her; she infected more than 50 people before she was finally placed in isolation for the rest of her life. Continue reading