The Law Is A Ass #441: Flash’s Step-Mom Is Tele-pathetic

Do I look like a cow to you?

I spent four columns last year – the four when we were playing in the minefield that was the “The Trial of the Flash” episode of The Flash – telling you that Central City district attorney Cecile Horton was really bad at her job. And now, thanks to the March 12, 2019 episode “Failure is an Orphan,” I have to chew that cud again.

Central City district attorney Cecile Horton is really bad at her job. But, to be fair, when it comes to job performance, Cecile’s husband, detective Joe West of the Central City Police Department, is about as sharp as a bag of Nerf Balls.

Sometime back Cecile learned that she was a metahuman with telepathic powers. Were Lois Lane to ask Cecile her big musical question, Cecile could truthfully answer, “Yes.”

So what did Cecile want to do with her abilities? Become Central City’s all-time champion Pictionary player? No, that would have served some purpose. True to her past performance, Cecile wanted to do something far less worthwhile. Far stupider. Cecile wanted to sit in with Joe when he interviewed a suspect, read the suspect’s mind, and signal to Joe when the suspect was lying.

At first Joe didn’t like this idea, but he disliked the idea for the wrong reason. Joe didn’t like the idea, because he felt threatened. If Cecile helped him by leading the suspect down the garden tele-path, Joe’s ability to read suspects which he had cultivated over years of suspect interrogations would be worthless. Basically Joe didn’t like the idea because it threatened his masculinity. Which is strange, because after all those years working with the Flash, Joe never felt e-mask-ulated before.

Anyway, once Joe got over his male ego problems, he was fine with Cecile helping him. And they jointly interviewed the suspect by playing Psy Cop, Bad Cop and without a single good cop in this scenario.

A good district attorney would never have broached the idea. And a good police detective would have nipped this idea in the bud faster than Barney Fife in a hissy fit. Boiled down to its essence, the Horton/West plan was literally to rip information out of suspects’ brains and use it against the suspects in their interrogations. And that’s a bad idea.

I don’t know how the law works in the Arrowverse. Literally, I don’t know. I’ve seen every episode of Arrow, The Flash, DC’s Legends of Tomorrow, Supergirl, and just to play it safe, Black Lightning, and I can honestly tell you I don’t know how the law works in those shows. Mostly because the shows’ portrayals of the law has been about as consistent as the Major League strike zone. But I can tell you how the law should work. And if the law is working like it should work, if anyone ever learned what Cecile and Joe were doing, nothing they learned in their interrogations would be admissible in court.

Cecile is a district attorney. Joe West is a police officer. By definition, anything they do in an investigation would constitute state action subject to the constitutional rights found in the Bill named after said rights. And what might the Bill of Rights say about Cecile and Joe’s actions?

Nothing. The Bill of Rights can’t talk. The courts do the talking for it.

One of the things the courts said on behalf of the Bill of Rights happened so long ago that I wasn’t born yet but Hector – whoever the hector he was – might still have been a pub. In 1952, the Supreme Court of the United States decided the case of Rochin v. California. When the police came to arrest Mr. Rochin, he swallowed two capsules of suspected drugs. The police took Rochin to a hospital, where a doctor shoved a tube into his mouth and forced him to swallow an emetic, so that he would vomit up the capsules. The court ruled this police action violated the Constitution. The Supreme Court reversed Rochin’s conviction and held that such police action “shocks the conscience” of the court.

Could such a case apply to someone reading a suspect’s mind and taking his thoughts out of his head? Would that violate the Fifth Amendment’s prohibition against forced self-incrimination?

How should I know? It’s not like any court in our neck of the multiverse has ever had to deal with a case involving an actual mind reader so that there would be actual language in a court case dealing with ripping thoughts from a person’s head. It’s not like some judge was a huge science fiction fan who anticipated telepathy and wrote something like, “It would be a stultification of the responsibility which the course of constitutional history has cast upon this Court to hold that in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach.” Right?

If you said, “Right,” you clearly don’t understand the purpose of the ironic rhetorical question. Felix Frankfurter – noted Supreme Court justice, second-cousin to famous district Attorney Ham[ilton] Burger, and, apparently, secret science fiction fan – used those exact words in Rochin.

Yes, the quoted language wasn’t the actual holding in Rochin. It’s what we call dicta. But dicta can still be powerful and persuasive language to cite in support of the notion that for a district attorney to read a person’s mind would violate that person’s right against self-incrimination.

So I cite it for exactly that purpose and say it would be unconstitutional for Cecile and Joe to read a suspect’s mind while interrogating the suspect and using that information against the suspect. Yeah, maybe no one would find out. But considering how well Team Flash keeps secrets, particular Flash’s secret identity, that’s not a foregone conclusion. In a world filled with meta humans, a good cop or district attorney wouldn’t risk a conviction by obtaining information from reading a suspect’s mind.

So why did Cecile and Joe do just that? Weren’t you paying attention earlier when I explained why they’d so something like that. It’s be-cud they’re bad at their jobs.