The Law Is A Ass # 317: Two-Face Makes A Dent In Crime
When lawyers talk about Miranda, we mean the Supreme Court case of Miranda v. Arizona and not a Brazilian movie star famous for her samba singing and fruit-laden hats that were so big they must have caused neck strain. When comic books talk about Miranda, it’s more of a crap shoot. I assume they’re talking about the Supreme Court case, but…
Well let’s put it this way, the banana on Carmen Miranda’s hat probably has more accurate knowledge of Miranda v. Arizona than the average comic book story. Case in point: Batman and Two-Face #27. (Or, maybe that should be court case in point.)
The comic in question, somewhere in the middle of a multi-part arc, contained a lengthy flashback set in the days before Harvey Dent became Two-Face. From, in fact, the days before he became the prosecuting attorney for Gotham City and was a criminal defense attorney.
Harvey was representing a robber who robbed and beat a 65-year-old woman and was later captured by Batman. The scene started in court and in medias res with Harvey saying, “…and thanks to Batman’s distinctive crime-fighting ways, my client was beaten to within an inch of his life and left on the front steps of the 34th Precinct like a bag of garbage. And, as you can see by the file, Your Honor, my client was not read his Miranda rights while his elbow and ankle were being broken by our glorious vigilante.” At which point the fictional judge banged his gavel, as fictional judges are wont to do, and dismissed the case; something real judges don’t want to do.
Attention writers (not just comic-book writers as I see this mistake in movies, in TV shows, in novels, in short stories, infinitum): If you learn nothing else from this column, please learn this, life is not a game of Monopoly and the failure to read a criminal his Miranda rights are not a Get-Out-Of-Jail-Free Card. Miranda rights, which were created by the Supreme Court of the United States in the aforementioned case Miranda v. Arizona, hence the name, say this – and only this: If a defendant makes a confession as a result of in-custody interrogation and the police did not read the defendant his Miranda rights before obtaining said confession, then the confession may not be used against the defendant. It does not – repeat does not – say, if the police fail to read a defendant his Miranda rights, then the case against the defendant must be dismissed.
In our little courtroom scene, the fact that Batman did not read the defendant his Miranda rights means nothing. Why? First, because in order to invoke one’s rights under Miranda one must be in custody and facing interrogation by a duly licensed officer of the law. That could be a police officer, a sheriff, a district attorney, a state trooper, or anyone else defined by statute as an officer of the law. Even Barney Fife. It could not be a masked vigilante who has no official standing with the police department. And back when this flashback took place, that was Batman’s official capacity with the Gotham City Police Department, unofficial. There was no Bat Signal. No red phone. Batman wasn’t a licensed police officer. So if he beat a confession out of a perp, there would be no state action and the perp’s rights under Miranda would not be implicated. For that reason, the case against our nameless robber would not be dismissed.
Now some jurisdictions hold that any coerced confession is not admissible, irrespective of whether it was coerced by state action or by a private citizen; although the number of jurisdictions adhering to this principle continues to dwindle. But let’s assume, for the sake of argument and making this column longer, that Gotham City is located in such a jurisdiction and Batman’s use of force triggered the defendant’s Miranda rights. Wouldn’t Batman’s beating the man to “within an inch of [his] life” mean the case against him would be dismissed?
You knew the answer was going to be, “no,” didn’t you? It wouldn’t really have made the column much longer, if the answer had been, “yes.” Remember, if the defendant’s Miranda rights were implicated, all it would mean was that any confession he made would be thrown out. It wouldn’t mean that all the evidence against the defendant would be thrown out; only the confession. (Have I said “Only the confession” often enough? I want to be sure I drive that point home, because so many writers don’t seem to understand it.)
The only way the case against the defendant in out story would be thrown out would be if the confession he made to Batman after being beaten was the only evidence against him. If the robber made a confession to the Gotham City Police Department after being Mirandized; or if he still had the female victim’s property on his possession; or if the female victim who was close enough to be beaten could identify him; or if there were any other evidence against him, the case against our defendant would have gone forward.
I find it impossible to believe that the only evidence against the defendant was a confession he made to Batman while he was being beaten. Why impossible? Because if that was the only evidence that prosecution had against the defendant, the state would not have pressed charges.
See, the prosecution would not have been able to call Batman to the stand to testify. Why not is a bit complicated and will require a column its own coming next week. But trust me, in the New 52, the prosecution would not have been able to call Batman to testify. And because the prosecution could not call Batman to testify, it would not have proceeded with the trial, if it had no other evidence against the defendant other than Batman’s claim that, “he confessed while I broke his arm and leg.”
So, we must proceed on the assumption that the prosecution had some other evidence against the defendant, meaning the case against the defendant would not have been dismissed simply because Batman didn’t Mirandize him before beating a confession out of him. It would have gone forward without said confession being admissible but with all of the other evidence being introduced against him.
Later in this flashback, Commissioner Gordon and Bruce Wayne decided if you can’t beat him, make him join us, and convinced Harvey Dent to run for district attorney. Harvey won the election and declared that his first act as district attorney would be to put the McKillen Sisters behind bars; although why he’d want to give these known reprobates liquor licenses, I don’t know.
Memo to Harvey: You can’t do that.
See the McKillen sisters – members of the Irish Mafia or some such criminal organization — were clients of Harvey’s when he was a private attorney. In fact, when he was their attorney, they confessed to him that they hired people to murder Commissioner Gordon, an attempt that failed.
When Harvey learned this, he told the McKillens he would no longer represent them and started looking for a way to get them prosecuted that wouldn’t violate his attorney-client privilege. That’s why he was so receptive when Bruce Wayne and Commissioner Gordon approached him about becoming prosecutor.
But he even though he was elected the prosecutor for Gotham City, Harvey wouldn’t have been able to prosecute the McKillen sisters. In order to prosecute them, he would probably have had to use information that he learned while he was their attorney. That would have been a conflict of interests, a violation of the attorney-client privilege, and precluded him from prosecuting them.
To be sure, the McKillen sisters could be prosecuted, but Harvey would have had to recuse himself from the case and request the state Attorney General to appoint a special prosecutor to proceed with the case. Or the judge would have granted a defense request to remove Harvey and requested the state Attorney General appoint a special prosecutor. Either way, Harvey couldn’t have prosecuted the McKillen sisters.
So remember, that attorney/client privilege thing; that’s important. But the whole the failure to give a defendant his Miranda rights does not mean the case against the defendant is automatically dismissed thing; that’s more important.
If you Carmen away with only one thing from today’s column, let it be that.