THE LAW IS A ASS #311: Commissioner Gordon: Threat Or Menace?

All I can conclude is that James Gordon attended police academy with Steve Guttenberg. That’s the only explanation I can come up with for what he did in Detective Comics #25.

Detective Comics #25 is set during Batman: Year Zero which, despite that title means the story takes place during Batman’s first year, not his zeroth year. At this time, James Gordon wasn’t Commissioner of the G.C.P.D. yet, just a recent transfer from Chicago who found himself in a city overrun by mobsters and crooked cops paid to look the other way while the mobsters mobbed. Gordon wanted to take down both the mobsters and the corrupt cops, starting with Roman Sionis, who Gordon suspected was the secret head behind the Black Mask gang. So what Gordon did was…

Oh, wait. SPOILER WARNING! Leaving your milk out will spoil the milk. Reading this column will spoil Detective Comics # 25. If you don’t want either your milk or comic books spoiled, don’t leave your milk out and don’t read this column. (No, wait. Do read it, just finish reading Detective Comics # 25 first.)

Gordon and his partner, Zachary Henshaw, learned that Sionis was about to pay off some of the crooked cops in his employ. They surveilled the pay off meeting. Gordon was supposed to record the meeting then signal Henshaw, at which point Henshaw and the men he brought would sweep in and make the arrests.

You can see it coming, can’t you? I certainly did. In fact, I think the only person who didn’t see what was coming was James Gordon.

There was no back-up. Henshaw was dirty. The cops who were there to support Gordon were cops Sionis was paying. I’ve gotten better support from “Bill” from Bangladesh.

Gordon was subdued and thrown off the New Trigate Bridge to make his death look like a suicide, so that Sionis could avoid the messy complications of a murder. (BTW, Sionis overpays his help. In every panel of this “suicide,” it looked like Gordon’s hands were tied behind his back. They staged the suicide with a bound man? Even Zed from Police Academy 2 would have seen through that set up.)

After Batman rescued Gordon, Gordon broke into Henshaw’s apartment and rifled a safe containing Henshaw’s insurance policy, “evidence against Sionis and all the crooked officers who’ve been doing his bidding,” which Henshaw kept in case he ever fell out with Sionis. Gordon stole this evidence and gave it to Commissioner Loeb. He then told Loeb in front of “two dozen or more” police officers – many of whom were corrupt cops whose names were in that safe – that he broke into Henshaw’s apartment and stole this evidence from Henshaw’s safe.

And Loeb used this evidence for two purposes. The first was to exonerate Gordon. Exactly how did he do this? Just because Gordon had good intentions did not suddenly make his crimes of burglary (breaking into someone’s residence to commit a theft offense) or theft legal.

Loeb also used the evidence to implicate almost a dozen Gotham City police officers and expose Roman Sionis’s criminal empire. Well, the evidence may have gotten most of the dirty cops, but it wouldn’t have gotten Henshaw. The “Year Zero” stories may take place in the past, but not so far in the past that they happened before the historic Supreme Court case of Mapp v. Ohio, which created the Exclusionary Rule.

The Exclusionary Rule says the prosecution may not use any evidence that was obtained illegally, such as during an illegal search and seizure of the defendant. Illegally seized evidence is excluded from the trial, hence the name Exclusionary Rule. (Hey not every legal principle uses some obscure Latin name.)

Gordon admitted in front of several witnesses that he broke into Henshaw’s apartment without a warrant and stole evidence. Even arch-conservative, strict-constructionist Supreme Court justice Clarence Thomas would rule to exclude this evidence and without having to look at Justice Scalia for guidance.

So the evidence couldn’t have been used against Henshaw, but it may have been admissible against the other defendants. In Supreme Court case Wong Sun vs the United States, the police illegally arrested a man named Toy, who confessed and told the police a man named Yee was selling drugs. The police arrested Yee and found the drugs. Yee then confessed and gave up his supplier, Wong Sun. The police arrested Wong Sun and, ultimately, he also confessed.

The Supreme Court held that Toy’s confession was the fruit of the poisonous tree, a doctrine which says the police may not obtain evidence by exploiting information learned from other evidence that had been seized illegally. The police obtained Toy’s confession by exploiting the original illegal arrest, so Toy’s confession could not be used against him. It also held that Yee’s arrest was the result of exploiting Toy’s original illegal arrest, so Yee’s subsequent arrest was also illegal and the drugs seized during Yee’s arrest couldn’t be used against Yee. Wong Sun tried to suppress his confession as the poisoned fruit of the illegal arrest and search of Yee, but the Supreme Court held that Wong Sun lacked the standing to make this argument. Yee was the arrested party, not Wong Sun, so only Yee, not Wong Sun, could challenge Yee’s arrest. Wong Sun could not suppress the evidence seized from Yee. So, as there was no poisonous tree, Wong Sun’s confession was not poisoned fruit and he could not suppress it.

Under Wong Sun, Loeb and Gordon couldn’t build a case against Henshaw, because he could move to suppress the illegally seized evidence. But the other cops lacked standing to suppress the evidence illegally seized from Henshaw, so couldn’t use the poisonous fruit doctrine. They probably could have been convicted, even though the evidence was seized illegally.

23 out of 24. That’s not a bad record, but 24 out of 24 would have been better. And if Gordon had proceeded properly, they could have convicted Henshaw, too.

Gordon saw Sionis paying off cops. He saw Henshaw ambush him. He heard Sionis admit he was bribing cops and heard Henshaw all but admit he was accepting bribes. He heard Sionis tell Henshaw to make Gordon’s death look like a suicide. He felt Henshaw hit him. And he was there when Henshaw threw him off the bridge. Those are known facts.

What a good cop should have done was take these facts to Commissioner Loeb and arrest Henshaw with attempted murder of a police officer. Then he and Loeb could take the same facts to a judge to get a warrant to search Henshaw’s apartment for evidence that he was accepting bribes. They would have found the same evidence that Gordon stole, but they would have found it legally. Then they could have used this evidence against the other cops and against Henshaw; and use it without any possible complications resulting from the fact that the evidence was seized illegally.

But Gordon didn’t do that. The future commissioner of Gotham City’s police department went rogue and acted in a way that killed his case against Henshaw and unnecessarily muddied his case against all the other dirty cops. If that’s the kind of police work that Gotham’s top cop employs, it’s no wonder that Batman is so busy.

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