Ethics Newsline®

When Justice Michael J. Obus of the New York State Supreme Court declared a mistrial in the case of Tyco International executives L. Dennis Kozlowski and Mark H. Swartz last week, he found himself in a situation having more ethical issues than a porcupine has quills.

A trial of this magnitude — the two men were accused of looting $600 million from Tyco — guarantees significant media attention. In this case, however, the media itself also became an issue. In the midst of contentious jury deliberations, one juror widely was reported to have flashed a circular-thumb-and-forefinger “OK” sign to the defense — an incident that led to repeated requests for a mistrial.

Judge Obus gamely labored to keep the six-month trial on course. But two media outlets, the New York Post and the Wall Street Journal, named the juror before the trial was concluded — in ways that were legal but also ethically discouraged by long journalistic custom. Acting uncustomarily, these outlets argued that the juror, by her extraordinary actions, had become news and had to be named. But last Friday, after the juror received a threatening letter from someone in the public, the judge pulled the plug on the trial. Result: defense lawyers disappointed that their clients hadn’t been vindicated, prosecution lawyers determined to seek a retrial, and a colossal waste of time and treasure for an inconclusive end.

What went wrong? The largest of the ethical quills here involves the presence of the media in the courtroom. Had no one reported the juror’s name, it’s doubtful that any intimidation would have occurred. So should we, as some have suggested, ban the media from court?

That raises a classic right-versus-right dilemma. On one hand, it’s essential that lawyers and juries do their work outside the glare of publicity, primarily to protect the legal process and keep their attention on their clients rather than on the public. Otherwise there are constant temptations, not only of intimidation but of using the trial for self-promotion.

On the other hand, it’s essential that courts in a democracy operate in full sunlight. Since the entire citizenry can’t attend every trial, we send in watchdogs to tell us what’s happening. Such vigilance keeps our legal system from slipping into the closed trials, arbitrary punishments, and unexplained disappearances of prisoners that characterize closed societies around the world.

If what you want is the best possible outcome in a particular trial, excluding the media may work. But if what you want is a legal system that, over time, produces the best results, transparency is essential and the media needs to be present. Yet that presence, as the Tyco trial demonstrated, raises two more ethical concerns:

• The Tyco juror was known to have been at odds with her fellow jurors, possibly to the point of refusing to deliberate. She apparently felt strongly that the defendants should not be convicted. Did the mistrial grant her wish? Did she flash that sign on purpose? Has she now proved that one juror can single-handedly abort a trial? Have jurors now learned that if they don’t like the direction the deliberations are taking, they should make a public spectacle, get named in the press, and perhaps produce a mistrial?
• But suppose she’s innocent. Some reporters thought she was not making an OK sign but instead was brushing back a stray shank of hair. Even so, there’s another lesson here: that a single letter of intimidation, sent to the right juror at the right time, can wreak havoc with a trial. All you need to do is discover a juror’s name, wait until a delicate moment, and then threaten harm if you don’t get the right outcome.

These three ethical issues — naming a juror, having a juror telegraph her intentions, or intimidating a juror — all have an uncomfortable commonality. Each speaks to the ways that a handful of people with no particular permission to act — a few editors, one juror, a single letter writer — can influence the outcome of world-class issues. By the way, that’s one of the characteristics of terrorism. A few students with guns at school, a couple of snipers in the Washington area, a few hard-core militants setting bombs in Madrid, also can create world-class havoc.

I’m not suggesting for a moment that editors, jurors, and letter writers are terrorists. But neither am I willing to accept the argument that since most editors wouldn’t do this, most jurors aren’t engaged in such curious telegraphy, and most people don’t write such letters, then there’s no problem. Terrorism teaches us two things: that preventing most people from building bombs isn’t good enough, and that terrorism depends on media exposure to spread its fear.

The point: There’s a larger theme that deserves examination in twenty-first-century culture. It has to do with the ability of lone individuals in a news-drenched era to influence the big public issues. Simply squelching the media isn’t the answer.

©2004 Institute for Global Ethics

“I strongly suspect when we start revoking grades, we’ll start revoking degrees.”

– Edward Jackson, chancellor of Southern University in Louisiana, discussing last week’s announcement that a worker in the school’s registrar’s office accepted money to change the grades of current and former students. More than 540 graduate and undergraduate students have been implicated in the scandal, which dates back to 1995. University officials last week turned their report over to legal authorities, who say they plan to prosecute, reported the Associated Press. (“Students in La. Suspected of Buying Grades,” AP, Apr. 1)

JERUSALEM
Israel’s state prosecutor recommended last week that Prime Minister Ariel Sharon be indicted for accepting alleged bribes, a move that sets the stage for a final decision, probably within a month, about whether to file charges.

State Attorney Edna Arbel made the nonbinding ruling after examining evidence linked to a series of alleged bribes from an Israeli businessman that began in 1999.

The businessman, David Appel, allegedly funneled funds to Sharon through the prime minister’s son, Gilad Sharon, in order to win support for two business deals, both of which ultimately fell through, reported the Associated Press.

Appel, who wore a wiretap during some of his alleged dealings with Sharon, was charged in January with paying hundreds of thousands of dollars to Gilad for a job for which he lacked qualifications and experience.

Prosecutors say the lucrative salary was a sham designed to get the money to Ariel Sharon in exchange for his help with winning government assistance, reported the AP.

Last week, Israel’s Supreme Court gave prosecutors a helping hand in the case, ruling that Gilad Sharon must turn over possibly incriminating tapes and documents related to any payments.

That ruling, coupled with the recommended indictment, puts the spotlight on Attorney General Meni Mazuz, who must weigh the evidence and announce or reject indictment within a month.

If Sharon is indicted, he likely will be forced to suspend himself or resign, imperiling his plans for making peace with the Palestinians, reported the AP.

NEW YORK
After 12 days of deliberation in the case of two former Tyco executives charged with bilking millions from the company, New York State Supreme Court Judge Michael Obus declared a mistrial last week, citing the latest in a curious series of incidents that compromised jury deliberations.

The decision was a bitter pill for jurors, some of whom said they were close to a verdict in the trial of L. Dennis Kozlowski, former CEO of Tyco, and Mark Swartz, the firm’s former chief financial officer. Both men had maintained their innocence throughout what proved to be an exceptionally long and tedious trial.

While Judge Obus said only that the mistrial came about because of outside pressure on one of the jurors, CNN reported that a woman referred to as Juror Number 4 had received a coercive letter.

Juror Number 4, a retired teacher, was at the center of an earlier controversy when it was alleged that she had given a surreptitious “OK” sign to defense attorneys. The allegation caused several news outlets to take the unusual step of publicly identifying the juror.

The New York Times reported that several jurors said the panel probably would have found the defendants guilty of at least some of the 32 charges against them. One juror told the Times that the jurors agreed that several of the acts cited by prosecutors were illegal, including a 1999 relocation loan of $32 million, three of the four bonuses received by the two men, and a $20 million payment to a Tyco director in connection with Tyco’s takeover of CIT, a financial-services company.

The office of Manhattan District Attorney Robert Morgenthau issued a statement saying the state would seek a retrial, according to CNN.

WASHINGTON
The Bush administration faced a fierce volley of charges last week from former government officials and investigative agencies accusing the government of blocking the flow of information or biasing official proceedings.

Among the developments:

• Jack Spadaro, the former head of the National Mine Health and Safety Academy, accused the administration of stalling an investigation into massive environmental contamination by Massey Energy Co., a powerful donor to the Republican party. Spadaro told CBS’s “60 Minutes” that he refused to sign the official report on the disaster — the dumping of 300 million gallons of coal sludge into water supplies in Kentucky and West Virginia — after the scope of his agency’s investigation was “considerably shortened” and weakened, resulting in a $5,500 federal slap on the wrist for the firm, reported the Reuters news agency. The government says Spadaro abused his position, violated procedures, and misused government credit cards.
• Fresh from sparring with the Bush administration over the availability of Condoleezza Rice, the commission investigating the attacks of September 11 last week locked horns with the Bush administration over the withholding of thousands of pages of files from the Clinton era. The White House reportedly had been blocking the release of three-quarters of the nearly 11,000 pages ordered released by the Clinton administration, saying the documents are unnecessary for the commission’s job. The commission said it should be able to decide what materials it needs. Under fire from Democratic lawmakers, the administration relented at week’s end, agreeing to provide full access to the papers, reported Reuters.
• Officials from across the country — 45 senators and 10 state attorneys general — last week demanded that the Environmental Protection Agency (EPA) scrap its controversial rewrite of rules governing the release of mercury from coal-fired power plants, reported the New York Times. Those rules, allegedly written largely to the specifications of industry lobbyists after derailing the normal review process, are set to take effect at the end of the year. The EPA, stung by intense criticism over the measure, said it is reevaluating the science behind its rewrite.
• The inspector general for the Defense Department last week released an audit report alleging massive missteps and ethics breaches in a proposed $23.5 billion lease deal between the government and Boeing Co. That deal, which is now on hold pending numerous investigations, was aided by an Air Force official later hired — and then fired after the flare-up — by Boeing. According to the audit, the Air Force violated contracting laws, gave Boeing unfair exemptions, accepted insufficient or inaccurate data, and wrongly waived the right to audit the lease program once it was under way, reported the Washington Post.

WASHINGTON
Republicans in the U.S. House of Representatives last week effectively killed an investigation by Democrats into whether the Bush administration concealed knowledge about the true cost of the new Medicare bill.

The House Ways and Means Committee has been looking into the issue, which centers on allegations made by Department of Health and Human Services (HHS) actuary Richard Foster.

Last month, Foster said his boss, former Medicare head Thomas Scully, threatened to fire him if he provided lawmakers with figures showing that the true cost of the bill would be far higher than the Bush administration’s estimate of $395 million.

That administration’s low figure was used to push the measure through the U.S. Senate last November under heavy pressure from President Bush and HHS head Tommy Thompson, noted the Associated Press.

Two months later, the administration acknowledged that the true cost of the program would be $534 billion — close to Foster’s suppressed estimate — prompting calls for an investigation.

Last week, Republicans on the investigating House committee joined together to block requests by Democratic members to subpoena Scully and Douglas Badger, the White House’s chief advisor on health policy.

Both men have refused to testify before the committee, with Scully saying he has been too busy and Badger being held back by President Bush, who says executive privilege allows him to withhold Badger’s testimony.

House Ways and Means chairman Bill Thomas (R-Calif.) told the Los Angeles Times that he wants to know if subterfuge was used, but dismissed requiring the men’s testimony as a matter of “whim or curiosity.”

Democratic members of the committee said that subpoenas were the only available means of compelling the men to testify about when they knew the official figures were too low and why the higher estimates were withheld from Congress before the crucial, lawmaking vote.

“The main issue is who knew about the actuarial figure and why wasn’t it disclosed in a timely fashion?” said Rep. Sander Levin (D-Mich.). “There was a cover-up of this information and we want to know how high the cover-up went.”

THE HAGUE
In a rebuke from the United Nation’s highest court, the United States was ordered last week to conduct a “review and reconsideration” of the death sentences imposed on 52 Mexicans whose rights, the court claims, were violated.

The U.N.’s International Court of Justice, often known as the World Court, ruled that U.S. authorities repeatedly violated the 1963 Vienna Convention by not alerting the arrested Mexicans of their right to contact their government for help.

Mexico filed a complaint with the United Nations in December 2003, noting that U.S. authorities admitted violating international treaty yet refused to block the death sentences, reported the Reuters news agency.

Last week, the International Court of Justice upheld Mexico’s complaint, ordering the United States to “permit review and reconsideration of these nationals’ cases by the United States courts.”

Declining to rule on the cases themselves, the court decided to give U.S. authorities discretion on how to conduct the required “review and reconsideration … both of the sentence and conviction” in 52 of 53 cited cases.

In the only excluded case, the convicted Mexican had waived his right to government assistance, reported the Agence France-Presse.

U.S. authorities denounced the decision as an intrusion into their national sovereignty, but said they would review the ruling before deciding whether to obey it. While the court’s decision is legally binding under international law, the United Nations has no means of legally enforcing it, noted press reports.

Supporters said the court ruling simply makes clear that the United States, which often invokes the Vienna Convention when its own citizens are arrested abroad, has to play by the same rules as everyone else.

“This sends a message that the United States must practice what it preaches and abide by these basic standards,” Center for Constitutional Rights attorney Jennie Green told the Los Angeles Times. “We should show we are willing to follow the same laws and standards we would impose on others.”

Reed Brody, a lawyer for Human Rights Watch in Brussels, said that “giving defendants access to consular officials means that they can get good defense lawyers as soon as they are arrested — the surest way to prevent miscarriages of justice and avoid the death penalty.”

President Vicente Fox of Mexico, who angrily cancelled a meeting with U.S. president George Bush in 2002 after Texas executed a Mexican, called the decision “a victory for international rights, for human rights.”

Following Germany and Paraguay, Mexico is the third country in five years to sue the United States for allegedly breaching the rights of arrested nationals under the Vienna Convention, reported the New York Times.

OTTAWA
The Canadian government last week gave the green light to a new law that bolsters oversight of lawmakers and high-ranking officials by creating a new and more powerful ethics post.

That new position — ethics commissioner — beefs up the role played by the current ethics “counselor,” a position that has been widely criticized for lacking bite and influence, reported the Canadian Press.

The legislation adopted last week also creates a new and separate post of Senate Ethics Officer, who will be in charge of monitoring members of the upper house of Parliament for conflict of interest or ethics breaches.

While urging continued progress, a transparency advocacy group called Democracy Watch last week hailed the new law as “the most important government accountability measure ever passed,” according to the CP.

In a separate move, the Canadian government last week began posting online the expenses of all federal ministers, their aides, and top bureaucrats, reported the Reuters news agency.

The step, authorized by a law passed last year, follows several scandals over flagrant and wasteful spending by officials, including former privacy commissioner George Radwanski, who was forced to resign after billing taxpayers for nearly $390,000 in travel expenses in just two years.

The information, which includes travel and hospitality expenses, must be updated every three months.

“Making this kind of information available online demonstrates our commitment to functioning in an ethical and transparent manner,” Treasury Board head Reg Alcock told Reuters.

BIRMINGHAM, England
In a bid to bring back neighborly communities and a culture of respect, the United Kingdom has begun enforcing “antisocial behavior orders” that slap rude and threatening individuals with severe restrictions.

The New York Times snapshots these efforts in a report last week, focusing on one ordeal in the town of Birmingham, which recently forced an abusive man to move out of his housing project.

Since Prime Minister Tony Blair began stumping for a restoration of social order four years ago, the government has hit about 1,600 citizens with antisocial behavior orders, notes the Times.

While some of these citations are mild, others can impose strict limits on the future actions of offenders — barring them from their neighborhoods or from visiting with previous partners in crime, for example.

While proponents of the rules say they help make neighborhoods safe again, others say they are difficult to enforce and also may deepen the problem of antisocial behavior by further stigmatizing and isolating troubled individuals.

“If you take away someone’s home and drive them into a worse situation, it’s not going to give them the impetus to make their life better,” Ben Overlander, a spokesman for the advocacy group Shelter, cautioned the Times.

Prime Minister Blair championed the measures in a Guardian piece from 2002, noted the Times, writing that the “reciprocity of respect on which civil society depends” appears to be slipping away.

The Times observes that the government’s new efforts are an attempt to fill the void, picking up the slack by compelling “the state to police behavior that would once have been the purview of families or neighborhoods.”

BRUSSELS
The European Parliament last week gave its nod to a controversial measure that would require companies to pay for the clean up of environmental contamination that they cause.

Companies say the proposed law makes the cost of doing business too uncertain, arguing that firms should be exempted when performing work that has been licensed or previously thought to be safe.

“Companies are very eager to be careful, but the problem is that there’s always a risk,” Erik Berggren of the Union of Industrial and Employer’s Confederations of Europe told the BBC. “All kinds of activities — construction work, transport, dry cleaning — can pose a risk.”

Last week, the EU Parliament refused to grant those exemptions, sending the measure to EU member states for individual introduction and ratification by 2007.

Special to Newsline from Canadian correspondent Errol P. Mendes

OTTAWA
A Canadian federal court judge has shocked the music industry worldwide by ruling that downloading a song from an Internet file-sharing music site does not amount to infringement of copyright law.

Justice Konrad von Finckenstein ruled that he saw no “real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory.”

In a decision that also impacted on Internet service providers (ISPs), the judge refused to order ISPs to identify 29 uploaders who the Canadian Recording Industry Association (CRIA) claimed had posted hundreds of music recordings on the Internet for file-sharing purposes. The judge refused to rule that such posting was tantamount to distribution in violation of Canadian copyright laws.

Canadian ISPs have lauded the decision of the federal court for protecting the privacy rights of their clients.

The ruling may have a major impact on similar court actions taken by the music industry around the world. In the United States, the Recording Industry Association of America has taken close to 2,000 individuals to court in its fight against what it considers illegal file sharing of copyrighted music.

From Bristol University:

“English schoolchildren from different ethnic backgrounds are more segregated in the playground than in their neighborhoods, according to new research by Professor Simon Burgess and Dr. Deborah Wilson of the Centre for Market and Public Organisation (CMPO). Ethnic segregation is particularly high for pupils of South Asian origin, both at secondary school and in their neighborhoods.

“The researchers use a measure of ethnic segregation that captures the evenness of spread of different groups of pupils across schools, or neighborhoods, within a larger geographical area. An area is highly segregated if a significant proportion of pupils would have to move schools (neighborhoods) in order to achieve an even distribution across each unit.

“So, for example, if 20 percent of the school population of a local education authority (LEA) is of Indian ethnic origin, there is no segregation if in each school 20 percent of the pupils are of Indian ethnic origin…. The more the actual distribution is uneven, the higher the degree of segregation. This index of unevenness ranges from 0 to 1: a figure of 0.6, for example, means that 60 percent of pupils from a certain group would need to move to achieve an even spread.

“…The researchers find that:

• “Levels of segregation are generally high. In the average LEA, the index is around 0.5….
• “There is substantial variation in the levels of segregation experienced in different areas of England.
• “There are differences across the minority ethnic groups: South Asians generally experience higher levels of segregation than their black peers, both at school and in their neighborhoods….
• “For both South Asian and black students, school segregation is higher than residential segregation in areas in which they are more numerous. These are generally some of the more densely populated, urban areas of England. This suggests that there is a loosening of the relationship between school and residential segregation in areas in which there is more school choice.

“The secondary school-age population of the country as a whole comprises approximately 87 percent white pupils, 6 percent of South Asian origin, and 3 percent of black heritage. While most schools and wards are overwhelmingly white (with medians of 97 percent and 96 percent respectively), there is substantial geographical variation, largely reflecting the residential clustering of different minority groups across England. For example, there are only 16 LEAs with more than 5 percent pupils of black Caribbean heritage; and only 6 LEAs have more than 10 percent of pupils of Pakistani ethnic origin….”

“We ought always to deal justly, not only with those who are just to us, but likewise to those who endeavor to injure us; and this, for fear lest by rendering them evil for evil, we should fall into the same vice.”

– Hierocles (Egyptian philosopher and student of Plutarch, fifth century B.C.)