Things fall apart: Williams v. Pennsylvania and judicial conflicts of interest

It seems self-evident that no person should be permitted to judge a case in which they have an interest, but our laws do not yet reflect this principle clearly, if at all. The Brennan Center for Justice at NYU recently published this article about a capital case—Williams v. Pennsylvania—in which conflict of interest has had a leading role.

This is a particularly timely article because the U.S. Supreme Court—narrowly divided on this issue several times in the past, though now more evenly so with the recent passing of Justice Scalia—heard oral arguments in this case yesterday, February 29th. (Transcripts and recordings of the oral arguments will be available here by March 5th.)

What is important for us to note is that, at issue are not disputes over guilt or innocence, but rather whether the fundamental concept of procedural justice has been tainted by a judge’s conflict of interest; and what kind of threat that would pose to both the perception and reality of justice and fairness in our legal system.

As the article notes, we all have the right to a fair trail before an impartial judge; yet

Mr. Williams was denied that right, by any reasonable reckoning, when Pennsylvania’s Chief Justice, Ronald Castille, who is now retired, declined to recuse himself in a 2014 ruling by his court upholding Mr. Williams’ death sentence, notwithstanding an astonishing conflict: He personally approved and oversaw Mr. Williams’ prosecution and post-trial defense of the death verdict in his earlier role as Philadelphia’s district attorney.

 

5.0.2

“You look familiar. Have I prosecuted you somewhere before?”

Our legal system is necessarily, and fortunately, adversarial; and removing that adversarial component from this case puts the integrity of the entire system at risk.

Lawyers are to argue their client’s case competently, perhaps even very aggressively, and an impartial magistrate is to judge the proper course of action after listening to and considering both sides. But what might we expect to happen if one of those lawyers were to become the “impartial” judge of the case at a later stage of the trial and then refuse to recuse himself? (Spoiler alert: objectively bad things, many of which are certainly immediately apparent to the reader even as pure hypotheticals.)

Upon Further Review: Ethical Controversies in Campaigning

Post 2: 199 and Counting: Donald Trump’s Insults

When and why do pundits, candidates, and campaign staffers cry foul during election season? As I mentioned in my introductory post, this section of the blog will serve as a sort of data-collection depository for disagreements about what constitutes fair and unfair play in campaign competitions.

The issue:

At this point, most are likely familiar with Donald Trump’s propensity to personally insult his opponents. The New York Times even keeps a running tally of his insulting tweets (he currently sits at 199). Trump tweet

The accusation:

Some argue Trump’s incessant personal attacks are undignified and dishonorable; “Trump has no sense of personal honor. None.” Others claim that his “raunchy language” lack of “basic decency” and “is ill suited to the nation’s highest office.” David Brooks suggests that “Trump’s bashing style of rhetoric makes communication impossible.” Trump’s style of speech doesn’t bode well for democratic governance, Brooks continues, because it forecloses the possibility of compromise and cooperation. Still others contend that his insults are troubling because they inspire Trump’s online followers to harass and intimidate his ‘enemies.’

The accused’s response:

Last fall in an interview with Megyn Kelly, Trump said: “I think the big problem this country has is being politically correct. I’ve been challenged by so many people, and I don’t frankly have time for total political correctness. And to be honest with you, this country doesn’t have time either” (see here for the full quote). More recently, Trump’s campaign manager Corey Lewandowski asked (rhetorically), “When someone attacks [Trump], should he just not respond? That’s not fair.”

Categorization:

Because of the sheer amount of commentary on all things Trump, it is difficult to definitively categorize critics’ objections to Trump’s actions. That said, some common themes emerge in many of the reactions to his repeated resorts to personal insults. As noted above, pundits (and rival candidates) have accused Trump of being an undignified or dishonorable person. Brooks’ claim is slightly different; he seems to be more concerned that Trump’s habit of personally insulting his opponents makes governing (after elections) impossible. Either way, few have criticized Trump of playing the game unfairly (e.g. bending the rules or cheating). And nobody has accused him of acting illegally by insulting his opponents. Thus, most objecting to Trump’s action accuse him of personal (im)morality in general, and dishonorable behavior in particular.

Other relevant information:

I have specifically avoided discussing some of Trump’s (and his rivals’) more inflammatory ‘policy proposals,’ here. I intend to address the ethics of those controversial comments (e.g. carpet bombing, the use of torture, name-calling of particular groups, etc.) in another post.

Michigan’s Harbaugh Rankles SEC Feathers With Spring Practices at Florida High School Recruit Factory

It’s an understatement to say that college football is a competitive game-both on and off the field. For big football schools like Michigan, Alabama, and Georgia, a successful school year includes a conference championship (or better) and plenty of revenue.

Coaches spend inordinate amounts of time and money recruiting top-tier high school players to ensure they can compete at the highest levels year after year. And typically, schools do their best recruiting relatively close to home. This tends to help the programs of the South Eastern Conference that are located in some of the most fertile recruiting grounds in the nation.

The NCAA attempts to regulate college football recruiting to ensure schools do not become disruptive to high school students and to maintain the illusion of a level playing field between big and small schools (guideline & calendar). The period in which Michigan plans to have practices in Florida is considered a “quiet period” for recruiting, meaning coaches can only have face-to-face contact with college-bound recruits on their own college campuses. The NCAA also only regulates the length and frequency of spring practices, not their locations.

Michigan coach Jim Harbaugh recently sought and received approval from the NCAA and the Big Ten to conduct spring practices at an elite Florida football high school, IMG Academy, in Bradenton, Florida. This is not the first time the school has conducted “satellite” camps, either. Last year Michigan conducted 11 satellite camps in 7 different states.

SEC coaches strongly dislike this trend:

Nick Saban of Alabama:

Jim McElwain of Florida:

Hugh Freeze of Ole Miss:

Brett Bielema of Arkansas:

And Kirby Smart of Georgia:

“(The Wolverines are) obviously trying to gain a competitive advantage, and that’s their right,” said Smart, who took over the UGA program in December and served as Nick Saban’s defensive coordinator at Alabama the previous eight seasons (2008-15). “But I think the NCAA, in due time, will have to step in.”

Jim Harbaugh responded quickly to Kirby Smart’s comments, stating:

The NCAA recruiting rules exist for a reason. Without them, large universities with lots of money would seek even more elaborate ways to woo the talented high school students they wish to sign. The more money and effort pumped into recruiting, the less effective it would become as all other schools sought to do the same. Eventually, all of the major schools would be spending (even more) massive amounts of time and money for arguably little improvement in recruiting (not to mention the growing distraction to the high school students). Professor Joseph Heath labels this type of behavior a race to the bottom: “in which each individual, responding to the actions of the others, generates an outcome that is successively worse, but where each iteration of the interaction only intensifies their incentive to act in the same way.”

The NCAA rules help the big schools overcome a collective action problem. These schools have come to a collective agreement about the rules of recruiting to prevent the very race to the bottom that Harbaugh may reignite.

The SEC commissioner is currently seeking to block Harbaugh’s plans through appeals to the NCAA about college players’ “off-time”; if that effort fails, discussions about changing the SEC prohibitions on these so-called “satellite” camps may soon follow. If Harbaugh wants a recruiting war, I’m sure the SEC football programs would be more than willing and able to outspend him in prime southeastern recruiting territory.

So who is right? The SEC coaches who own a distinct geographic advantage on fertile recruiting ground? Or is it Coach Harbaugh who is most likely realizing improved exposure to key recruits by practicing in “warmer weather?”

Harbaugh may not be breaking the letter of the law, but he is pushing the spirit of it. Being a Georgia football fan who has long supported Georgia’s recently started indoor practice facility construction, I’ll remind the readers that Michigan has one of these:

Athletics, Dave Ablauf

“Reasonable disagreement” v. “beyond the pale”

niqab4 no text

Isak has begun a series of posts on this blog under the rubric “Upon Further Review.” He explains this project of gathering and analyzing the allegations of “fouls” on the campaign trail this winter and spring on the Presidential campaign trail here, and he continues here (and elsewhere “above” this post in the near future, no doubt). His rubric borrows the language of video-replay officials in American football, and other sports, who take a slow-motion second look at calls they used to be able to make only on the fly.

Canada went through its own federal election in the fall of 2015, and in later stages of that election the then-governing Conservative Party was accused of “playing the race card” — albeit in coded language that might appear almost quaint when compared to the game played by the current frontrunner in the Republican primaries. (I say almost, because it would not have appeared quaint to those whom these Conservative tactics were attempting to stigmatize.) And when they did play the card, Canada’s leading political philosopher, Joe Heath (University of Toronto), called them on it in this post on his blog In Due Course.

Those tracking the US campaign these days should find plenty of useful analysis in Heath’s post: from an excellent summary on why democracies thrive on “reasonable disagreements,” to how we decide when certain tactics that exploit unreasonable disagreements must be considered “beyond the pale.” The cartoon below captures some of Heath’s argument for why certain ways of playing the game of politics fall short of our minimal standards of “political sportsmanship.” (For those unfamiliar, a “niqab” is what the hockey player in the cartoon at the head of this post is wearing.)

niqab2

Heath begins like this:

One of the most important concepts in modern democratic politics is that of “reasonable disagreement.” There are a number of different principles or values that most of us subscribe to, at some level, but in cases where they conflict, it is not entirely obvious how they should be ordered. When should public welfare be assigned priority over personal freedom? How much loss of welfare should be accepted in order to promote greater equality? These are the sorts of questions that define the zone of reasonable disagreement in modern politics. The central distinguishing feature of the right-to-left spectrum of political parties is that they propose different answers to these questions, with the right putting more emphasis on personal freedom, the left more emphasis on equality, and the centre focusing on maximizing welfare. This naturally translates into different views about the role of government in society.

The disagreement is “reasonable” because the underlying principles are ones that are very broadly accepted – they are in fact foundational for a liberal democratic society – the disagreement is more one of emphasis.

And ends like this:

…after Friday’s press conference, I can no longer regard it as morally acceptable for anyone to vote for the Conservative Party of Canada. A week ago, I could still persuade myself that reasonable people could disagree over how to vote in this election, but no longer.

As they say on the sites that troll followers with clickbait: you won’t believe what those mild-mannered Canadian Conservative politicians said during that press conference last fall. But seriously: if you’re looking for guidance on how a committed Republican should vote if Donald Trump is the GOP’s nominee, click into Heath’s post.

Upon Further Review: Ethical Controversies in Campaigning

Post 1: VOTING VIOLATION and the Cruz Campaign Mailers

When and why do pundits, candidates, and campaign staffers cry foul during election season? As I mentioned in my introductory post, this section of the blog will serve as a sort of data collection depository for disagreements about what counts as fair play in campaign competitions.

The issue:

In recent days, many have accused the Cruz campaign of using “dirty tricks” during his presidential campaign (you can watch Seth Meyers’ Late Night segment on Cruz for a more entertaining rundown of some of his ‘tricks’). While Cruz has provided those of us interested in campaign ethics with an abundance of material to examine, I want to focus on one particular (and lesser known but perhaps more interesting) controversy that Cruz was forced to address in the past month.

Iowans (and a handful of pundit) were upset about the mailers distributed by Cruz staffers insinuating that potential caucus goers’ participation rates would be publicized. In hopes of increasing turnout, Cruz (presumably) sent these notices—which can be seen in the image below—to those his campaign thought would be likely to support him in the caucuses (a strategy that seems to have backfired in the case Tom Hinkelday).

 

Cruz Mailer

The accusation:

Iowa Secretary of State Paul Pate condemned Cruz’s tactic because “it is not in keeping in the spirit of the Iowa Caucuses.” Iowa Governor Terry Brandstad called the mailers “unethical and unfair.”

The accused’s response:

After criticism about the misleading mailers, Cruz said: “I will apologize to no one for using every tool we can to encourage Iowa voters to come out and vote.”

Categorization:

After the mailers made headlines, the Cruz campaign was accused of dishonesty by some and outright fraud (but not illegality) by others. As noted above, Pate and Brandstad argued that Cruz was violating the spirit of the competition. Almost all agreed that the mailers were legal (in fact, Donald Trump deleted a tweet where he stated that they were illegal). And though some accused Cruz of personal immorality following the mailer controversy, his campaign was usually criticized on the grounds that it circumvented the rules of the political game by sending the mailers. Moreover, Cruz himself did not deny that the mailers were deceptive and manipulative (perhaps implicitly acknowledging that, in his view, deception and manipulation have a place in campaigning). All things considered, both Cruz and his critics appear to believe that one’s ethical judgment about the mailers were depends on how one understands the rules of the game. In short, this ethical controversy is about fair play more than personal morality or legality.

Other possibly relevant information:

These mailers have been distributed in previous campaigns with little or no fanfare. Why did this controversy make headlines? Some have argued that this particular mailer was worse than others because assigned letter grades (which usually happened to be an “F”) next to the names of individuals. Others have stated that it looks much more like an official state document than previous mailers. While it seems as though the mailers are now generally taken to be more evidence that Cruz is personally untrustworthy (which, as many have pointed out, is ironic considering he usually speaks in front of ‘TrusTED’ banner), that didn’t seem to be the case, initially.

“Kasich — are you still here?”

thumbs_car-train-crash

Presidential Primaries are a game. So here’s some more elementary game theory — on the game known technically as “chicken” — to predict the Rubio-v.-Kasich endgame. This is brought to you by the brilliant graphics editor at The New York Times, Kevin Quealy. Here’s the conclusion:

The chance to be your party’s nominee for president comes along only every four or eight years, even for the very luckiest candidates. If the candidates lived in a universe in which they could run for president hundreds of times, they might agree that, on average, their shared interests were better served by cooperating. Once in a while, Mr. Kasich might try to win the contest outright against long odds, but, on average, he would probably agree that cooperating, including alternating victories, was the best way to serve his and Mr. Rubio’s shared interests. Game theory shows that initerated dilemmas, played many hundreds or thousands of times, cooperation is a very stable strategy — one reason it is so common in nature.

But this is not an iterated dilemma. It’s a one-time-only dilemma with a tremendous payoff for the winner. As much as Mr. Kasich might think about his legacy, the good of the party or even his own chances in 2020 or 2024, the future is very far away.

Ultimately, they risk an outcome neither he nor Mr. Rubio wants. As Daniel Diermeier, the dean of the public policy school at the University of Chicago, notes, “A very important lesson of game theory is that sometimes the world is a grim place.”

Then again, the Presidential Primaries aren’t just a game….

Mr Corbyn and parliamentary bloodsports

corbyn kinder

We count democratic politics on this blog as one of the Big Archetypical deliberately adversarial institutions. Power in the state is not given to a person or group who is carefully determined to be able to use it to run the most just government. It is given to the winners of a highly regulated — and also ritualized — contest; otherwise known as an election.

It is easy for us to see and feel the “game” of politics during elections. In America right now we are consumed by it, and it is covered by the news media in almost exactly the same way the sports media covers professional and college sports leagues. But elections are only part of the game of democratic politics. The next most visible political competition happens openly in legislative assemblies, and then in the maneuverings — partly public, but often in “back rooms” — that precede the debates and votes that take place in the legislatures.

One of the principal complaints about the legislative game, from the point of view of adversarial ethics, is that it has become in the US a so-called “permanent campaign” — legislators between elections are primarily concerned about what they can do (or avoid doing) in the legislature in order to win the next election. If they ever care the slightest about the design and justice of policies, bills, and laws, it is only insofar as public perceptions about these things will influence the next election. (See the criticisms of Mitch McConnell discussed here a few days ago.) This is the heart of the satire in the greatest just-slightly-fictional political comedy ever, the BBC’s Yes Minister (and its sequel Yes, Prime Minister), not to mention the now-sharked House of Cards.

This post, however, is less about the “permanent campaign” than about a much more visible manifestation of politics-as-sport (even bloodsport, on occasion). Every legislature has its own written and unwritten rule, conventions, and rituals of debate. And no legislature has had more time to develop these than the British House of Commons, where the Prime Minister and the Leader of the Opposition debate face-t0-face on an almost weekly basis. It you were designing from scratch the rules by which a deliberative body would be most likely to develop and enact sensible legislation (what political philosophers do when they theorize about “deliberative democracy“) you would not end up with something like the House of Commons. To say nothing of the House of Lords or the Monarchy.

That said, in the UK, it is what it is. All MPs know the rules, written and unwritten. For example, they never address each other directly, but carry on the debate as if everyone were trying to convince the Speaker. Although outsiders may be aghast at the seemingly buffoonish behavior of British MPs in the House, the MPs themselves are expected to know how to deal with it if they are to have any chance of “winning” the day during Question Period.

Which brings us to the clip-of-the-day in my Facebook newsfeed. Comments on Facebook and Twitter from many of my American friends and friends-of-friends suggests they don’t really know how British politicians, especially the PM and the Leader of the Opposition, are expected to play this game. What is obvious, however, is that virtually every MP on both sides of the isle knows who won and who lost this round.

I see that many British commentators (well, some of my British Facebook friends, at any rate) have all sorts of sinister explanations for the irrepressible smiles of Jeremy Corbyn‘s colleague Andy Burnham, the Shadow Home Secretary, seated behind Corbyn, on his left. I am too ignorant of Labour Party intrigue to psychoanalyze him from this clip alone. It seems to me that Burnham knows the rules of the game, knows that his leader has just been blown up by his own pompously lobbed petard, and done so because of the kind of quick wit one usually sees only on scripted shows like Jon Stewart’s old Daily Show. Burnham seems to be tipping his hat for a move well played by his opponents. Normally, that is one of the hallmarks of good sportsmanship. Corbyn’s inability to do the same, and to immediately change course and attempt to seize rhetorical advantage in a way he had not planned, is also a sign that he either does not understand the game he is playing during Prime Minister’s Questions or, more likely, that his game as a parliamentarian is just not that good.