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A moral dilemma

By Arthur Gilbert Ben Armistead | May 8, 2019

Law Practice,
Judges and Judiciary

May 8, 2019

A moral dilemma

So am I going to go ahead with my novel? I’m thinking about it.

24 gilbert mug

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on


I recently met with a friend, an elderly attorney who is even older than I. Short digression concerning the previous sentence: My experience leads me to believe that most everyone would have written or said the grammatically incorrect "older than me." That's what I usually encounter, even with college professors. "Fowler's Modern English Usage," 2nd edition, notes this error. Also see Strunk and White's "The Elements of Style," 4th edition, p. 12: "A pronoun in a comparison is nominative if it is the subject of a stated or understood verb. Sandy writes better than I. (Than I write.)" I detest this example.

Incidentally this brings up another concern that does not rise to the level of the moral dilemma I will presently discuss. But how is it appropriate to act when in conversation with a friend, an acquaintance, or anyone for that matter, they use the grammatically incorrect "me"? Do we correct them or let it pass? Does it matter if the person involved is a close friend and there are just two of you, or does the dynamic change when others are present? I let it pass on all occasions. And by the way how about the related and grammatically incorrect "It's me"? Fowler gives "It's me" a pass as a current, acceptable colloquialism. I agree. Who wants to be friends with someone who says "It's I" or worse "It is I"?

Now, where were we? Oh, yes, my elderly attorney friend, who you will soon come to understand must remain anonymous. So for clarity I shall refer to him as Lester -- Lester the lawyer. Over hot tea and biscuits served by his caretaker, he discussed his recent project. Incidentally, he has this annoying habit of digressing now and then, no doubt a characteristic of the aged, but he has "all his marbles," as they say, and his dilemma gave way to another -- mine.

Lester has written a novel about a murder case he handled many decades ago. It is based on facts. (By the way the phrase "true facts" is redundant. So is the phrase "actual facts." "False facts" is obviously a contradiction and a misnomer. Facts simply are.) The facts in Lester's novel do not include confidential communications between Lester and his client. The facts in his novel are those that were reported in newspapers and police reports shown to the press. The prosecutor was interested in a plea bargain because his case was weak. Defendant opted for trial.

While the jury was assembled, and before the judge called the first prospective juror into the jury box, the prosecutor discovered his key witness, a weak one at that, had disappeared. Rather than proceed, the prosecutor moved to dismiss the case, with the hope that he could refile sometime in the future. Lester asked me to confirm his belief that his novel did not violate ethical boundaries. Because Lester and I know that judges may not give legal advice, I mumbled "interesting." So far so good.

For the impatient reader, we are nearing the moral dilemma upon which this gripping column is based. Lester posed a conundrum that had not occurred to me. What if a detective who worked on the case read the novel? What if the detective dug up the files on the case and did some further investigation? There is no statute of limitations on murder and it is likely jeopardy did not attach. What if DNA evidence, an unknown criminal investigation tool when the case was filed, could nail the defendant today? Could Lester be subject to liability in a civil case should this occur? And here is the moral dilemma.

But first a minor digression. People v. Axell, 235 Cal. App. 3d 836 (1991) was the first DNA case in California. I concurred in that opinion. Supposedly I know something about DNA evidence. Notice I said supposedly. And now the moral dilemma. It does not concern Lester and the possible imaginary civil law suit that might be brought against him. It is about me and the novel I wish to write.

My novel is about the fictional lawsuit that is brought against Lester when his novel prompts further investigation on the case that nails his client. Great idea, don't you think? My publisher loves the idea. So this will be my original novel, but the origin of the idea for my novel was occasioned by Lester confiding in me.

To help me focus on my dilemma I consulted with my trainer Michael Haupers in the gym. After all, he is an expert on physiology, the functions of our various muscle groups, and tailoring programs that meet the needs of individual clients. He said "go for it." But as an added precaution, I decided to consult a seer who is familiar to regular readers of my column, the hoary, the venerable, Miss Anne Thrope.

You may recall Miss Anne lives in a rundown mansion of yesteryear, in the Hollywood Hills. Her dwelling resembles the dilapidated estate of Norma Desmond, the forgotten silent film star played by Gloria Swanson in the classic 1950 movie "Sunset Boulevard." Miss Anne sleeps most of the time, but during her few waking and near-waking hours she may utter enigmatic yet profound insights. I visited her this past week at twilight. It was my hope that an early evening visit might be the most productive. Her caretaker, who bears a striking similarity to lawyer Lester's caretaker, ushered me into her darkened bedroom.

I leaned over her frail body covered by thick satin covers under an imposing canopy that lay oppressively over the bed. I was encouraged to see that Miss Anne occasionally appeared to open her eyes now and then. I related to her my predicament. Her prune-like face contracted slightly as her raisin-like eyes squinted. She whispered something about time, and her caretaker said "twilight." She whispered, "Nietzsche." I do recall she was reputed to have had an affair with Nietzsche in the late 1890s and a brief dalliance with Chester Arthur before that.

But what on earth would the existential German philosopher Nietzsche have to do with... and then I recalled his work "Twilight of the Idols." I tried to remember his thesis, something about rationality to fulfillment, and passion being integral to the human condition, and far superior to faith. In advancing his thesis, he harshly criticized the great thinkers of the past, including Plato and Aristotle. He argued their beliefs and arguments were not just wrong but morally reprehensible. That we should pursue our passions and goals without reference to conventional morality. Oh dear, I was too conventional to go that far.

Even though I am not anyone special, I thought about how people who knew me would think about me after my demise. I mentioned to Miss Anne that for all his accomplishments, Woodrow Wilson was a proponent of segregation; Thomas Jefferson and many early presidents had slaves. And the revered jurist Holmes wrote the Buck decision (Buck v. Bell, 274 U.S. 200 (1927)). And artists who revolutionized culture were not always the most admirable people in the world. Wagner was anti-Semitic. And Picasso used and abused women.

I quieted down, and then she whispered, "Picasso said, 'Art is the lie that tells the truth."'

So am I going to go ahead with my novel? I'm thinking about it.


Ben Armistead

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