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Sunday, March 11, 2012

How Can a Lawyer Defend a Person Who's 100% Guilty of a Heinous Crime and Feel Proud of Handling Such a Legal Case? And What's That Got to Do with Protecting a Non-Conformist like Me from Being Involuntarily Committed to a Mental Hospital? Easy. Read this New "Bobs blog" Analysis.

This is THE most common question lay people ask lawyers.  Until I began living an unconventional life, not in conformity with the the expectations of my community, I used to give a mostly abstract answer to this question.  Now I understand the problem in an urgent, existential way which I didn't before.

If you've been following the Comments to my recent blog post about why I am nasty to people who are nasty to me, you will have read a number of Comments from people who think I should be locked up at the local state mental hospital.  Some of these people have predicted my probable fate is to wind up hanging from a rope above a kicked-away stool or lying in a back alley, dead from a bloody beating.  Without "proper" medication or other unspecified "help," these fortune-tellers are cock-sure I am destined to an early demise. I have been called psychotic, grandiose, narcissistic, and other less clinical names.

If a vote could be taken in Middletown of people who knew me then and know what I'm doing now, I would not be surprised if a majority would like to see me locked away in a ward for the mentally ill at Connecticut Valley Hospital, which is only a few miles east of where I'm sitting writing at this moment.  The motives of these voters would vary from true concern for my well-being and the happiness of my wife and children on the bright side to anger, hostility, jealousy, and envy on the dark side.  For purposes of my analysis, it matters not what the motive is, just that the majority probably would like to see me forcibly treated psychiatrically with in-patient treatment in a mental health facility.

It matters not to them that I have fully discussed on my blog that I saw Dr. Allan Jacobs, M.D., of West Hartford, a psychiatrist, from September, 2010 until July, 2011 for medical management of psychotropic medication during my severe, suicidal depression and subsequent recovery.  And I have repeatedly revealed that I continue to see my psycho-therapist, Raymond Oakes, of Essex, a clinical social worker and very experienced therapist, weekly, from September, 2010 until the present and I have no plans to ever stop seeing him.  I have also explained that one reason I go for therapy is to hold my feet to the fire to continue to make big changes in my life rather than remain complacent or get stuck in a rut.  I don't feel I need therapy, because I no longer have a mood disorder, as I did when I was depressed,  but I do want the benefit of the self-awareness which therapy can bring and the functional benefit of life-change motivation which I also get out of it.

I don't think any of the allegedly well-meaning Commenters on my blog have ever asked me what Dr. Jacobs or Ray Oakes think about whether I "need" any treatment other than what I've sought voluntarily.  Dr. Jacobs is on my email list of people who get notice of new "Bobs blog" posts.  The only response I've gotten from Dr. Jacobs is last summer when he briefly stated he was happy I was doing things in life which made me happy.  Ray Oakes has not told me he thinks I "need" any other treatment.

Last spring, in my former men's group at my old church, the Jacob Group, when several of my old friends aggressively informed me I "needed" to be on mood stabilizers or other "appropriate" psychiatric treatment during one Tuesday afternoon session, one of them suggested that a man in the group who is a psychologist contact Dr. Jacobs and Ray Oakes to make sure they knew how I was acting.  My immediate reaction was to invite the entire Jacob Group to my next sessions with Dr. Jacobs and Ray Oakes.  I emailed Dr. Jacobs about this and he said he didn't think that would be particularly helpful.  I don't have Ray Oakes' email address, but I told him of my offer and he said he didn't think it would be helpful to him either.  My offer to the Jacob Group totally killed their enthusiasm for being in touch with either Dr. Jacobs or Ray Oakes.

What does any of this have to do with defending a guilty person?  Here's the connection.

Lawyers who defend guilty people are really defending, enforcing, and upholding the United States Constitution and the constitution of whatever state is prosecuting the defendant.  My friend Jerimiah Donovan did not think it was good for his client, Joshua Komarjevsky to rape and kill Dr. Petit's wife and daughters.  But Jerimiah did believe, with every fiber of his being, that it was a good, really essential, thing to stand up for Joshua's constitutional rights to due process of the law.  Many of the Commenters on the website of The Hartford Courant could not understand why a jury trial was necessary in the Petit Home Invasion Case.  The defendants should have been summarily executed without due process of law.

Why are those vigilantes dead wrong?  For starters, unless lawyers protect the constitutional rights of guilty people, those rights may not be available to protect and vindicate innocent people who are wrongly charged with a crime they didn't commit.  Russia and China have written contitutions which confer various rights on their citizens.  But Russian journalists who expose corruption are sometimes found murdered in alleys.  And Chinese lawyers who boldly stick up for their clients are sometimes jailed.

If lawyers don't stand up for the constitution, even for the guilty, the constitution may not be there to protect the innocent when they need it.  And that means you and me and everyone else.

But, you may say, you're a law-abiding citizen.  You don't commit crimes.  Why should you care?

Part of me used to feel the same way.  But I don't feel that way now.  Why's that?  Let me explain.

In yesterday's New York Times, a letter writer, David Raines, pointed out that the French philosopher, Alexis de Tocqueville, called a community's power to enforce conformism "the tyranny of the majority."  This, Mr. Raines wrote, "gives us all more personal freedom.  But at the same time, we are biologically programmed to see those like ourselves as allies and those different from ourselves as competitors, if not enemies.  The end of conformism has left us uncomfortable with our social environment, with our fellow citizens."  Mr. Raines was commenting about a new book about the class divide in America by Charles Murray, not constitutional rights, but those sentences flipped a switch in my mind and led me to write the present blog piece.

I do think a fair interpretation of a least some of the people who don't like the way I'm living my life now is this.  They see me, as Mr. Raines wrote, as a competitor, if not an enemy.  They are uncomfortable with me, their fellow citizen, who once conformed to their standards of what's appropriate for a retired lawyer, husband, father, and friend, and what's not acceptable.  And that's the precise point where my life, as I wish to lead it, and the constitution come into play.

In Victorian times, according to a biography I read a long time ago of Sigmund Freud, young women who were thought to be sexually promiscuous could be involuntarily committed to what were then called insane asylums for psychiatric treatment, barbaric as it mostly was in those days.  These young women were classified as "morally insane."  Imagine if such legal processes were in use today.  How many sexually-active young women would be involuntarily committed to the local state mental hospital for "treatment" of their "sexual promiscuity disorder"?   Don't think this is an academic matter.  In other cultures, women of any age are stoned or worse for all kinds of behavior which in our society would might elicit a yawn, a roll of the eyes, or no reaction.  Think Saudi Arabia and Pakistan, to take just two examples.  If you haven't been living on Mars the past few years, you know what sorts of cases in those societies I'm talking about.

What prevents a family from having their promiscuous daughter involuntarily hospitalized at the state mental hospital for forced psychiatric care, to restore her to a chaste and virtuous lifestyle?  The United States Constitution.

Our mental hospitals used to be full of people who were not a genuine danger to their own physical well-being or the physical well-being of others.  Many there were who were hospitalized because they "acted strangely" or did not "conform" to "appropriate" standards of behavior.  This all changed in the 1960's as the psychiatric community began to re-think who should be forced to get psychatric care.  Eventually, the United States Supreme Court held that a person could only be forced to get involuntary treatment if he were a demonstrable and substantial danger to himself or to others.  Mere unconventionality was not sufficient to put the white strait-jacket on a person.  And such treatment was held to be appropriate only for people whom a psychiatrist testified under oath needed such treatment.

Which brings me back to my situation.  If I, or anyone else, commits a crime, the police can arrest me or anybody else.  Then a prosecutor, who is a lawyer, decides whether to continue the prosecution or drop the case. This happened to me at the KKK (Koji Komedy Klub) in New Haven.  I've written about the case, extensively, on my "Bobs blog."  The prosecutor eventually asked me for permission to drop the charge; had I objected, I could have demanded either a trial on the charge or an immediate dismissal (acquittal) of the charge.  I agreed to the dropping of the charge because I saw no advantage in being tough with the prosecutor at that point.  His decision to drop the charge was a vindication of my position that the KKK permittee wrongfully called the police and the police wrongfully arrested me  However, I'm just glad the prosecutor agree that while I look and act unconventionally, I did not commit a crime.

Similarly, I know that anyone seeking to involuntarily committ me to the state mental hospital would be hard-pressed to find a psychiatrist willing to testify, and maintain his position under cross-exmination, once he talked to me, that I am a danger to myself or others.  The mere fact that I take risks which others don't take is not enough to committ me or anybody else.  Plenty of conforming people take all kinds of risks, without being locket up on a mental ward.  Think NASACAR drivers, professional football players, sky divers, climbers of Mt. Everest (50% of whom die in the process according to Jon Krakauer's book, "Into Thin Air").

Ellin Sacks, a USC law professor, wrote an interesting book called "Refusing Care," with a well-thought-out and presented discussion of whom we should force to get care and whom to just leave alone.  Professor Sacks reports in the book that when she was a student at Yale Law School, she was hospitalized at Yale-New Haven Hospital at least twice for acute schizophrenia, involuntarily, for treatment with medications.

Even if a "hired-gun" psychiatrist gave the requisite testimony to put me away in a locked ward, I am certain that Dr. Jacobs and Ray Oakes would testify that I am a bit eccentric now, by the conventional standards of "polite" society, but not a danger to myself or others.  Knowing how probate judges, who make these initial calls about committment petitions, think about such matters, along with judges and appellate judges, I am quite certain the judicial system would not be an accessory to an involuntary stay for me at the local mental hospital.

Gadfly, royal pain in the ass, non-conformist, needs a haircut and a shave: all these can fairly be said of me.  Call me the Crazy Old Dancin' Dude if you will.  But I'll never agree to be locked up in a mental hospital.  Think of one big problem with that scenario.  I'd drive all the psychiatrists and nurses CRAZY, and THEY'D commit themselves, just to get away from me.

Vive la Constitution!!!!!

Thanks for reading. Please put any of your questions or Comments in the window below.

Thanks, Bob

14 comments:

  1. You state you saw a psychiatrist for medical management of psychotropic medication "from September, 2010 until July, 2010". I'm confused. Did you travel back into time? Does the calendar work defintely in your world? In my conforming world September comes after July, not before.

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  2. Dear Editorial Anonymous (March 12, 2012 8:17 a.m.),

    Thanks for editing that story for the benefit of the Conformist World. Good catch. I don't always edit my blog stories before I hit the "publish" button. There are so many high-minded things on my mind at any given moment. Creativity is hard work, but, like cleaning toilet, somebody's got to do it.

    Also, are you really so certain that the story wasn't written intentionally that way, to make sure you Conformists were paying attention? That will be your koan for the day.

    You're correct that in the world of The Conformists, such as you (by your own admission), September comes after July. But in my world, the world of Die Ubermenschen and the Poets, time is a much more plastic construct. Remember, as Kant observed in his "Critique of Pure Understanding," many centuries ago, time and space, as you Conformists understand them, are categories of the mind through which you filter the phenomena of your limited, conformist human experience.

    We Poetic Non-Conformist Ubermenschen see things a bit differently. Consider the two opening lines of T.S. Elliott's "Burnt Norton," from his "The Four Quartets," for example, to see how fluid the category of time itself truly is, to the Meta-Thinking Group:

    Time present and time past
    Are both perhaps present in time future
    And time future contained in time past.
    If all time is eternally present
    All time is unredeemable.

    In answer to your other insightful question, yes, I DID travel back into time when I wrote that blog post. I frequently make such journeys. Every day, in fact. In my Rich Writer's Imagination.

    And yes, definitively, my calendar works. D-e-f-i-n-i-t-e-l-y.

    I hope you no longer are confused, except about one tiny matter. September comes both before and after July. Think about it for a while and you'll see how that is both true, in my imaginative reckoning, and false, in your unimaginative.

    I enjoyed playing with your mind and your conundrum. I'll be sure to trigger others in future posts.

    All best,

    The Mysterious Mind

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    1. P.S.: I hope you'll write again. That was fun. And I hope it is for you, too.

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    2. Thanks for the reply.

      Perhaps it's me, and it probably is, but I don't quite get your analogy of defending a known guilty person and not being involuntarily comitted. Are you saying that you won’t be committed because you have the legal right to not have to be? So in your defiance you’re fighting for every other person out in the world who shouldn’t be committed involuntarily?

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  3. Dear Thankful Anonymous (March 12, 2012 10'26 a.m.),

    You're welcome. And thanks for writing again to request clarification of the point of the story.

    What I'm saying is this. Even if you don't like the fact the Constitution protects the guilty as well as the innocent in criminal cases, you should applaud the lawyers who vigorously defend the guilty. If they didn't, we would not know the situationally-based contours of the precious constitutional rights we all have as citizens, in common with each other. Also, if lawyers don't stick up for the constitutional rights of their clients, regardless of the client's guilt or innocence, either because the lawyers are afraid they'll be punished by the government or the public for doing so, we wouldn't have a system in which innocent people, as well as guilty, can count on the protections afforded by these rights. For example, if confessions can be beaten out of guilty people and used to convict them, so can innocent people be beaten into wrongfully confessing to crimes they didn't commit.

    The law, and constitutional rights, don't exist in a vaccum. If lawyers are afraid to assert their clients' rights, for whatever reason, then those rights are just words on a piece of paper or computer screen. If there are not honest, non-corrupt judges and courts to enforce our rights, regardless of political fall-out, and without taking bribes and payoffs to throw the case in the face of the just and right outcome under the law, we have some kind of a system, but not one I'd call a legal system.

    Conformist people who behave according to the accepted norms of appropriate behavior may not think they have any stake in the laws which guarantee people like me the right to be non-conformist without fear of being locked away in a mental ward and "treated" until we agree to "behave ourselves." But remember, I was once a conformist, at least on the outside of my being. And when I was, it didn't seem to me that the civil committment laws would ever be used to lock me up for psychiatric "treatment." Now, however, I've switched gears, changed my life plan. Now I am one of the "odd balls," the "non-conformists." And as I've noted, if you read the blog Comments there are those who predict, or perhaps hope, that I will be taken away to the state mental hospital for behavioral "re-programming." Fortunately, no one would ever be able to convince a court that a person who acts as I do does not have a right to be the way I am. No psychiatrist is going to say so either. And this is so because there is no evidence whatsoever that I am going to harm myself in a way the law cares about, nor that I plan to hurt anyone else.

    [Continued in next Comment window.]

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    1. [Continued from previous Comment window.]


      It would probably be impossible to get a court to civilly commit for forced psychiatric care a man who says he wants to climb Mount Everes. This is so despite the fact that 50% of people who attempt the final ascent die on the side of the mountain before they reach the summit. There is no evidence that what I'm doing is likely to kill me or hurt anyon else. In America, if you want to take risks with your body which other people are afraid to do, nobody can stop you. And if you want to do the stuff I've described on my blog I've done, the American legal system is not going to stop me.

      In short, yes, I won't be committed, cannot be, because I have the legal right to do so. And I have the legal right to do so because some invountarily committed person got a lawyer and sued to persuade a Court to force the mental hospital to let him go, way back in the 1960's, well before I ever knew I someday might be unconventional enough to be the beneficiary of that man's wllingness to fight for his legal right to be non-conforming, but FREE.

      And yes, in a way, I'm also fighting to uphold the right of every other person in America, at least, not the world, who should not be locked up involuntarily.

      Thanks for writing. Please do so again.

      All best,


      The Pugnacious, but Open-Minded, Writer

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    2. Thank you for your time and for the clarification. I agree with the guilty person having the right to be defended. It's not always clear cut that a person is guilty. Even if 100 witnesses see a man commit a crime he/she has the right to due process. Emotions take over, unfortunatley, as well public funds are exhausted, sometimes in great amounts, to try and convict the individual. It doesn't seem fair, but it's all part of the process. It's not a perfect process, but the best one we have.

      Though I am not familiar with the requirements and laws of institutionalization, I agree, and it seems quite reasonable that a person shouldn't be hopitalized just because they act different.

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    3. (continued)

      I don't beleive your commenters honestly think you should be hospitalized. It's a knee jerk reaction to what seems like odd behavior. I do think they believe or at least are concerned that when people have drastic behavior problems it's usually related to mental health decline. With that comes suicidal attempts or least that what they think since it's the layman's reaction. I also don't think they want to see you dead, but when you call young women goddesses and write poems about their sexy fine ass behinds, well you might just piss off someone's boyfriend one of these days and you could get seriously hurt. These dance clubs have metal detectors and pat you down before you're allowed to enter. Why? Cause that's the kind of clients they serve. Act oddly towards the wrong guy or say the wrong thing, as innocent as your intentions might be, and one of these conformists just might not appreciate your free wheeling nature.

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    4. Dear Fair-Minded Anonymous,

      I really like your Comments and questions because a lot of people share your views about the legal system.

      Actually, eyewitness testimony is notoriously unreliable. Professor Elizabeth Loftus has studied the problem of mistaken identification extensively and concluded it's a bad way to convict someone. The good thing about Miranda vs. Arizona, the case which requires the police to warn in-custody defendants of their right to remain silent, have a lawyer, and the like, is that it forced the police to move from pressuring people to confess to gathering evidence forensically. Think of all the people on Death Row based on eyewitness testimony which later was shown to be perjured or just inaccurate when the DNA results came in.

      Also, even if an eyewitness sees a man killing another man with a gun and the DNA tests confirm the identification, how do we know from that alone if the crime was murder or manslaughter or negligent homicide? This is a complex subject, but I think you get the idea. Motive and context often cannot be seen directly and sometimes only by inference from other circumstances not seen by the 100 "eyewitnesses."
      In the Chesire Home Invasion Murder case, when it came to the jury deciding whether Joshua Komisarjevsky should live or die, that was an extremely complex question, requiring not only "eyewitness" testimony but documents, experts, and all sorts of other complex evidence and legal argument.

      The big problem for the layperson, even for some lawyers, is this. People want things to be simple and neat but life is often complex and messy. And so legal proceedings are often complex and messy affairs.

      As for my Commenters and their motives and hopes (and fears) about me, I don't care what they want. I care that The Law holds that I have the right to choose to be different, no matter what other people think, and I cannot be hospitalized for just being different, as you recognize. That's not the way it always was in this country and it's definitely not the way it is in a lot of other countries. In Saudi Arabia, women are not allowed to drive themselves and have to cover their entire bodies when they leave their homes.

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    5. [Continued from previous Comment window.]

      As for what kind of lifestyles precede suicide attempts, I became suicidal in September, 2010 when I was leading a very conventional lawyer's life. I have not felt the least suicidal since January, 2011, when I began to recover. And the hate some people exhibit towards me, and fear, doesn't lead me to want to kill myself. Far from it. I quite able to deal with fear, hate, and all the other negative reactions people have to me.

      I know the boyfriends of every one of the Goddesses I wrote that poem about, and two of them were present when I recited the poem at The Shadow Room. One of the boyfriends considers me his lawyer. I've given legal advice to one of the other young women. I'm very conscious of how to behave to protect myself, but no life is without risk. It's an illusion to think otherwise. Do you and I even know for sure we'll be alive tomorrow? That's a contingent matter, not analytically true or false. But that's a whole other philosophical issue which I can expand on if you want.

      As for metal detectors at dance clubs, they don't have them at any of the clubs I've been at. I once represented a DJ's estate when I was actively practicing law. The DJ got caught in a cross-fire against another person in the bar/dance club. One of the claims of negligence we made was that the dance club did NOT pat people down or have a metal detector. I've NEVER been patted down before going into a dance club in Middletown, Hartford, New Haven, New York, or Philadelphia. I know there are clubs in the big cities which have them, but they're not legally-required.

      I have encountered some jealous reactions in dance clubs when the Goddesses decide they want to dance with me, often in groups of two or three or more women. But I am very conscious of any trouble brewing with boyfriends. Look, I appreciate your concern, but I've lived a long time through many dangers and risks I've taken. And so far, I'm still standing, 5'10" above ground, not 6' under.
      Thanks for your great questions.

      All best,

      The Risk-Taking Non-Conformist

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  4. A very good friend of mine wrote me this email about this blog post. I am repeating it here because there is no way to identify this person from the email and it's a very interesting response to my analysis. I will then offer a reply to this person's question.

    "Dear Bob,
    Thoughtful piece. I have always understood the reasons why even the apparently indefensible must be defended. I don't understand why others don't get it. I do have one cavil that would probably prevent me from being a good (successful?) litigator. A long time ago I had a friend who kept badgering me to join the ACLU. I refused because I felt that its charter would require the organization to come to the defense of anyone's first amendment rights regardless of how offensive and abhorrent the use of the right was. I was proved right in my view when sometime around 1977 the ACLU came to the defense of a Nazi group that wished to march in Skokie, Illinois and had been denied the permit required to do so. The ACLU and the Nazis won their case but no point of law was settled since it was sent back down the judicial chain on appeal and didn't proceed any further when the Nazis withdrew and got a permit to march in Chicago. But you probably know all this. My point is that while I agree 100% that the Nazis had a right to express their views by exercising their lawful first amendment rights, and I would say so, I wasn't going to spend a dime of my money (via ACLU dues) to support that right because of my distaste for their putrid ideas. I don't ever want to be in the position of having to actively support anything just because I believe there is an inalienable right to express those views."

    And my Reply:
    Thanks for your intelligent response. An important question is also embedded in your remark. What IS the ethical obligation of a lawyer to take on the case of someone whose case involves issues or views which the lawyer does not want to be associated with or to defend?
    The answer is quite obvious. There are so many lawyers willing to defend just about anything that other lawyers are free to stay away from. However, if it were the case that NO other lawyer would take the case, then every lawyer has to try to persuade some competent lawyer to handle the case or handle it himself or herself if he or she is competent to do so.
    The ethical situation is much like it is for doctors. If Adolph Hitler had been brought by ambulance in cardiac arrest during World War II to Beth Israel Hospital in New York City, could the trauma team of doctors have refused to revive him once they recognized the little man's ugly mustache? I don't think so.
    Thank you, my friend, for your thoughtful email Comment.

    All best,

    Bob

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    1. And my good friend's reply to mine:

      "Don't mind being identified. My comment couldn't incorporate all that I think about the matter. Of course lawyers have the ethical duty to take on distasteful cases in defense of the broader principle of protecting everyone's freedoms. As for myself, if I thought I couldn't do the client justice because of my view of his behavior, I would feel it my duty to help him find counsel who could do so, without referral to an "ambulance chaser." Is that term still in use?

      Several months ago, my doctor prescribed a medicine to which I had a reaction that built up over a couple of days. By the time I realized the problem, it was late on a Friday and I decided to wait until Monday to call the doctor. When I did call him, his first words were "stop taking the medication and come and see me today. You should have called me at once. A doctor's duty is always 'first, do no harm'." Jim Weiss is not only my physician, but a social friend and I know he takes that principle as his guidepost. He practices what is called "concierge medicine" which has real advantages; it does cost the patient a good deal more but provides a higher quality of care than regular physicians can give. To balance this "elite" service with his duty to mankind, he gives a lot of pro bono time to the less fortunate. As for Hitler in the ER, of course the doctors must treat him. First do no harm, opens another dimension of its ethical imperative. Harm to whom? Hitler or mankind? I think that the situational ethic requires the ER to treat Hitler and then alert the appropriate authorities of his presence at Beth Israel. My guess is that there are real examples where doctors had to make the choice and chose to do no harm to the patient.

      N.H."

      [Editor's Note: Although Bob's friend said he didn't mind being identified, it's not necessary to do so.]

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  5. Doctors must treat Hitler? Are you an idiot? They would feign treatment Come on

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    1. Dear Hippocrates-NOT Anonymous (April 16, 2012 at 5:10 a.m.),

      Of course a medical doctor, having taken the Hippocratic Oath would have a moral and legal obligation to treat Adolph Hitler. The oath obligates all doctors to "first, do no harm." In this context, letting Hitler die would be an ommision which, if he were bleeding to death, for example, and no other doctor were available to stop the bleeding, would be the legal and moral "cause" of the death. It would then be up to the legal system to decide what to do with Hitler. For example, he could then be tried by a war crimes tribunal, as Adolph Eichmann was, and hanged.

      If Osama bin Laden had not been killed by the Navy Seals, he would have been treated as a prisoner of war and given all the medical attention he needed. It is not for medical doctors to act as police, prosecutor, judge, jury, appellate court, and executioner, at least not non-Nazi doctors.

      What, precisely, is the legal, moral, and ethical basis of your view?

      All best,

      A Moral Philosopher

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