Demosophia

Bias, Ethics and Terrorism

Stephen Den Beste writes an exhaustive post on the topic of whether or not reporters and news organizations ought to, or can, remain unbiased. (Whether they are or not, is another matter.) But I think he does make one error that, although it impacts his case only marginally, suggests an institutional blind spot that we need to correct. The correction to his error (assuming it is an error, and I'm not simply mistaken) brings into stark relief a glaring inadequacy in our criminal justice system. Stephen makes the following, possibly erroneous, comparison:

Suppose that a defendant was free on bail, and when consulting with his attorney he said things which make clear that he was actively planning to rape and murder some specific child. Situations like that have come up, and in some of those cases the attorneys in question informed the authorities in hopes of preventing the crime. (Presumably in such a case the attorney would also refuse to further represent that client.) That is what I would hope most defense attorneys would do in such cases. To stand by and do nothing would be wrong.

When I took alternative dispute resolution from Beryl Blaustone at Willamette Law School back in 1991 (I was a management, rather than a law student, but got an ADR certification) we discussed the role of lawyer/client privilege and ethics. The dilemma was similar to the one mentioned above, where a client reveals an intention to commit a crime and a lawyer or arbitrator must make a decision about whether to reveal the impending crime to authorities. Ms. Blaustone's verdict on the matter was that if you choose to reveal the crime, it constitutes a violation of professional ethics and ought to result in your resignation from the profession, at the very least. However, there was an exception, and it applied not merely to arbitrators but to lawyers. The exception, specifically, involves child abuse. If the impending crime involves a child you are bound to reveal the circumstances to authorities. You have no choice. Moreover, if you don't make the revelation you can be prosecuted, and imprisoned (or at least disbarred).

Ms. Blaustone was an instructor at CUNY Law School (she was visiting Willamette) so it's possible she was talking only about New York law. But she seemed quite adamant, and I got the distinct impression that this had to do with national statute, though I can't provide a citation.

The issue is relevant because although Stephen argues that the logic of striving for an unbiased presentation of the news "does not hold infinite weight" the fact that a definite exception exists to such a broadly accepted ethical practice suggests that what we deem acceptable risk or threat for adults is not acceptable for children. Their innocence begs an exception, and could therefore become the basis for further exceptions involving similar comparisons. Clearly national defense ought to be another, especially in the case of terrorism. For if we have decided that it's unacceptable to make children the brunt of an ethical rule that serves a broader purpose, then surely the specter of mass casualties ought to lead us to something like the same bright line for terrorism.

Of course the purpose of Stephen's post isn't about legal ethics. In fact, he only brings that topic up to illustrate that such idealistic arguments don't carry infinite weight, and all I've done is make them a little more definite. Well, a lot more definite, actually. But leaving aside the issue of press bias, it's important for us to begin to consider paradigmatic changes in the way our criminal justice system operates, and especially with regard to the principle of an "innocent until proved guilty" standard. That is one possible formulation of non-bias, that is subject to a tradeoff that optimizes the risk of a particular type of error: the erroneously acqutted defendent. There's another formulation of non-bias that involves the presumption of guilt, and that also optimizes a characteristic error: the erroneously convicted defendent. It ought to be manifestly obvious that even though we must choose one or the other paradigm neither is really entirely unbiased. What we are doing is choosing to minimize one kind of error at the expense of mazimizing another. And the only thing that's really unbiased is that it's our choice of which paradigm to use.

This consideration is new to society. We don't have much precedent that deals with it, unless one goes back to some of the early and very extreme punishments for treason, deemed acceptable because what harmed the sovereign harmed the state. We know that the consideration is new because although we've created an exception to attorney/client privilege when the negative consequences befall children, we still hold to the presumption of innocence standard when we try a defendent for child abuse. This has been thought through and settled. But there is currently no statutory exception to attorney/client privilege for terrorism, although the scale of damage far exceeds the negative consequences to a child. And at the very least, it's unlikely that a mass terrorist attack could be perpetrated without directly harming a child. So, we clearly have not thought this through yet either in terms of common law precedent, or statute. And it's high time we did.

Update: Charles, in a comment below, holds that in his state (and presumably therefore in the nation as a whole) there is no such special rule for child abuse. In my defense I should say that I undersold Judge Blaustone a bit. She wasn't merely "an instructor" but was on the founding faculty of CUNY Law School. Either she is wrong, however, or (somewhat more likely) my recollection is off, and the rule she refers to is or was a state statute only. Now that I think of it her admonition may have been that some states had passed such laws, making the revelation of a crime involving child abuse obligatory. Since this was 13 years ago, I don't know whether those laws are still on the books.

I don't think the fact that the child abuse exception isn't universal necessarily weakens the argument that we need to think through the issue of the presumption of guilt for terrorist offenses. Objections that are concerned with potential abuse of such a standard by government prosecutors could conceivably be addressed either adjusting the standard required for indictment and/or the penalties for false arrest and. The "standard" that we currently have isn't much of a standard at all, since it's being applied on an ad hoc basis, using contrivances like "enemy combatant" designations. Furthermore there aren't clear systems of authorization and accountability for misapplication. I don't think there's much precedent in this area to go on, but we might as well start building it. Given the extreme importance of the issue it ought to be garnering more debate.

Posted by Demosophist at May 30, 2004 03:35 AM | TrackBack