Author: Bob Ingersoll

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #374


The law doesn’t work the way it did in The Twilight Children #1. Except for those times when it does.

Bundo, the town drunk, lives in a small seaside town somewhere in Mexico. According to the local kids who spent two panels giving us Bundo’s back story, Bundo passed out on a couch with a lit cigarette. His house caught fire. His wife and his three little kids died in the fire. Bundo was sent to prison because “mean people said he set that fire on purpose.” Later Bundo was let out of prison when, “they found out he didn’t do it on purpose.”


I don’t know what Bundo was convicted of. My efforts to find out were hampered by the fact that try as I might – and I did try – I couldn’t find any convenient source of Mexican laws online. At least not one I could read. I may have been a Spanish major in college, but that was more than forty years ago. Nowadays my Spanish isn’t even good enough to get me through an episode of Zorro.

Okay, there was this one site where a group of Mexican attorneys offered to provide “English translations of Mexican Laws, Regulations, and Standards.” And all for only $1,275 a year. I passed. It’s not that I don’t love you, my readers. I do. I just don’t love you that much. (Apparently, you can put a price on love and it’s $1,275 a year.)

So, I’m going to analyze Bundo’s situation using law I can find and research; Ohio law. My Yahoo weather app assigns random pictures from Flickr to the background screen for my home town’s weather. According to Yahoo, Cleveland has mountains, hot springs, icebergs, and castles in it. I see no reason why it can’t have a small Mexican seaside village as well.

One of the few things I did learn about criminal trials in Mexico is that they’re tried to judges, not to juries. If the judge in our strange hybrid world of MexicOhio believed Bundo did what he did on purpose, that judge would have convicted Bundo of aggravated murder.

The judge might have thought Bundo murdered his wife and children with prior calculation and design. That’s what we used to call “premeditated murder” back in those unenlightened days when we let Perry Mason define our crimes and not legislators who were paid by the word. If so, the judge would have convicted Bundo of aggravated murder with prior calculation and design.

Bundo’s children were described as “little kids.” They were probably under the age of 13. In MexicOhio, aggravated murder also lies if someone purposefully kills a person of tender years.

Finally, if the judge believed that Bundo set his house on fire on purpose that would be aggravated arson. As Bundo’s wife and children died as a result of the aggravated arson, the judge could have convicted Bundo of aggravated murder under a felony murder rationale.

It doesn’t matter under what theory the judge convicted Bundo. He could even have mixed and matched theories like socks in a Laundromat. What matters is that Bundo would have been convicted of aggravated murder.

Aggravated murder is a hefty crime. It’s not surprising then that it carries a hefty prison sentence. Not the death penalty – Mexico doesn’t have the death penalty – but a long, long sentence.

In the story, Bundo was released from prison after “they”determined he didn’t kill his family “on purpose.” In the real world – or even the semi-real world of MexicOhio – Bundo would not have been released just because, “they found out he didn’t do it on purpose.”

Ohio courts have the power to modify convictions if new facts come to light. Juries can consider lesser included offenses. So can courts. If new facts prompt a court to conclude the evidence no longer supports a conviction for one crime, the court can determine whether the evidence is sufficient to support a conviction any lesser included offense subsumed in the greater crime.

Bundo was so drunk that he passed out on the couch with a lit cigarette. Said cigarette started a fire which killed his wife and children. It’s my considered opinion that any judge who considered Bundo’s case would correctly find that even if Bundo didn’t do it on purpose, so wasn’t guilty of aggravated murder, he was guilty of reckless homicide.

After the judge found Bundo guilty of reckless homicide, it would have imposed a new Bundo, one appropriate for reckless homicide. Bundo wouldn’t have been released simply because “they,” whoever “they” were, suddenly discovered that he didn’t kill his family on purpose. He would have gone back to prison under the new sentence imposed on him. That’s why the law doesn’t work the way it did in The Twilight Children # 1.

But here’s why it sometimes does.

The judge might think the years Bundo had already spent in prison for the aggravated murder which he didn’t really commit was sufficient punishment for the reckless homicide which Bundo did commit. In that case, the judge could suspend the new sentence he imposed on Bundo for reckless homicide and put Bundo on probation.

Also we don’t know how long Bundo had been in prison before he was released. If Bundo had spent so much time in prison under his sentence for aggravated murder that he had already served the maximum sentence authorized by law for reckless homicide, what then? Due Process says you can’t imprison a person for longer than the maximum sentence authorized by law. In that case, the judge would have released Bundo, because he had already served the maximum sentence. Either way, Bundo would have been released from prison because “they found out he didn’t do it on purpose,” just like the story said.

And that’s why the law doesn’t work the way it did in The Twilight Children # 1, except for those times when it does. Under either scenario, Bundo would be free from prison and free to contemplate the mysteries of life.

Mysteries such as this. Bundo is a slang term meaning to become highly intoxicated. Why the hell would his parents give him a name that was basically a self-fulfilling prophecy? Parents who do that – especially comic book parents who do that – are a real E. Nigma.

The Law Is A Ass

Bob Ingersoll: THE LAW IS A ASS #373


Seriously writers and producers of Rosewood, you don’t have to make it this easy for me.

Rosewood is a new TV series on Fox. It’s a police procedural; but to make it different from all the other procedurals it has a gimmick: the main character takes a drug that unlocks the full potential of his brain. No, wait, it’s that the main character is a naked amnesiac with tattoos all over her body.

Sorry I get confused. There are so many of these procedurals on TV that they’re starting to mix into one giant alphabet soup of NCSICIS.

Dr. Beaumont Rosewood, Jr. is an independent pathologist in Miami. When someone dies and the grieving family or friends aren’t satisfied with the findings of a standard autopsy performed by that incompetent government pathologist, they plop down 5k – 7,500 for a rush job – to hire Rosewood and all of his state-of-the-art equipment for an independent autopsy. So every week, Dr. Rosewood will look into some homicide and then proceed to procedural with Homicide detective Annalise Villa to solve that murder, because the police and their incompetent government pathologist could never do it on their own. (How many multi-millionaires took their talents to South Beach, anyway? Are there really enough super rich grieving family and friends to keep this pricey pathologist in practice?)

In the pilot episode of Rosewood, Dr. Rosewood and Detective Villa investigated the murder of a young woman. After they spun their wheels (literally; they showed Rosewood’s classic GTO convertible so many times, GM must have coughed up for product placement) for thirty-three of the show’s forty-five minutes – because wheel spinning’s the procedure of procedurals – they settled on their prime suspect. I’d say they found said suspect, because he was the only one left after they eliminated everyone else, but that wouldn’t be true. The first time this suspect was even mentioned in the show was when Rosewood and Villa decided he was the killer.

Said suspect was a


high-end Miami DJ with a yacht from which he held spun platters and held parties. Sometimes he’d even take the party to Mexico, where he’d pick up black cocaine that had been molded so that it looked like records and smuggled it into Miami by mixing it in with his other records. The victim was one of his party girl dancers, who learned what he was doing. So he killed her.

In order to investigate the DJ, Rosewood and Villa went to one of his parties. Villa danced with the DJ. Then, while Rosewood created a diversion, Villa went below deck, knocked out the security guard who was guarding the below deck area insecurely, and proceeded to search the DJ’s living quarters and office. She found the black cocaine. She also found the DJ, who chose this plot-appropriate time to come below deck.

The DJ pulled a gun on Villa, because what’s a cop show without a cop in jeopardy? The DJ proceeded to confess to the murder, because what’s a cop show without a bad guy who monologs? Villa disarmed the DJ, but he got away and started to run, because what’s a cop show without a chase scene?

Not to worry, Rosewood and Villa caught him.

(Oops, forgot to SPOILER ALERT that “they caught him” bit. If you didn’t see the police catching the murderer in a police procedural coming, sorry I spoiled it for you.)

And, I’m sure they took the DJ to trial. I’m just not sure on what charges.

Murder? I’m not sure they have the evidence to make that charge stick. The second Villa searched the below deck area without a warrant she made an illegal search. The cocaine disguised as records that she found would be inadmissible. hat would make proving the DJ’s motive difficult.

Drug smuggling? Same problem. Illegal search, inadmissible evidence.

What about the fact that the DJ confessed to the crimes? Well here’s the thing, Villa got the DJ to confess by talking to him while he held the gun on her. She exploited her initial illegal search to get the confession. The Fruit of the Poisonous Tree Doctrine says any evidence obtained by exploiting an initial illegal search is also inadmissible. So the DJ’s confession probably wouldn’t be admissible, either.

Moreover, even if the confession wasn’t Fruit-of-the-Poisonous-Tree inadmissible, it was inadmissible for another reason. When Villa was dancing with the DJ, she slipped her phone’s bluetooth headset into his pocket. What he said was broadcast to some nearby police officers who had recording equipment bonded to Villa’s bluetooth.

Which begs the question, how powerful was Villa’s bluetooth? If I leave my phone in the kitchen and walk to the bedroom, my phone drops the bluetooth connection. How were some police officers who were several dozen yards away able to keep the connection open?

It also begs a more important question; hasn’t anyone connected with Rosewood heard of wiretap laws?

Seriously, how long would it take to research illegal wiretap laws in Florida? Exactly as long as it takes to type “Florida illegal wiretap law” into Google then hit the Enter key. That simple task immediately produces a link to Florida Statute 934.03.

Okay, it takes a little longer. You also have to read the statute.

Or you can trust me when I say I read the statute and it makes using an electric device – like a bluetooth – to intercept an oral communication a crime. So Villa’s bugging the DJ was also an illegal search, because it broke the law. (Breaking the law, how much more illegal can you get?)

But don’t worry, Rosewood and Villa can still get the DJ on another charge. See, while he was running away from the police, the DJ grabbed a girl at gunpoint used her as a hostage. Then he was captured.

While I had the Florida statutes keyed up, I also read Florida Statute 787.01. So if you’re still willing to trust me, I can tell you in Florida, a person who abducts another person (i.e., like grabbing her at gunpoint) to use as a hostage is guilty of kidnapping. When the DJ kidnapped the girl, he committed a new crime. Even better, the kidnapping was sufficiently attenuated from Villa’s illegal search, that the fruit of the poisonous tree doctrine wouldn’t apply to it.

So good news Rosewood and Villa, you can convict that bad old DJ on something. Maybe not murder. Or even drug smuggling. But kidnapping ain’t exactly chump change. And it’s extra special good news, considering your bad police work almost botched the case entirely. Remember Columbo’s gimmick was that he only pretended to be incompetent.


These procedurals all have some gimmick to differentiate them from all the other procedurals on the air. As gimmicks to separate you from other procedurals go, having investigators who are actually incompetent might be kind of fun.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #372


Ok, while it wasn’t enough to make him a threat or a menace, what Spider-Man did wasn’t very nice.

It was Mike Barr, a long-time friend and even longer-timed comic-book reader, who reminded me of this story. Mike’s a friend and comic-book reader of such long standing that when he said Spider-Man #4, I knew which comic he meant. When the long-timers say Spider-Man # 4, we only mean one book. We don’t need no steenkin’ adjectives. Or even volume numbers. For us the original The Amazing Spider-Man was Spider-Man and Spider-Man #4 can only mean what is now clumsily called: The Amazing Spider-Man v 1 #4.

In the middle of this story, the first appearance of the villain Sandman, said villain was running from the cops and decided to hide out in Midtown High School, which seems the perfect place to hide. Considering the level of intelligence Sandman’s shown over the years, I’m not sure anyone would ever think to look for him in a school. Unfortunately for Sandman, it wasn’t such a perfect hideout, after all.

If you’re a long-enough-time reader, such as Mike, or me and you get to call The Amazing Spider-Man # 4 by its nickname, you’ll remember that at this point in Spidey’s career he was still a high school student and Midtown High is the high school he attended. If you’re not, either read the Spider-Man wiki entry I’ve already linked to in this column or take my word for it.

Spider-Man and Sandman then had the story’s obligatory fight scene in the school. And – SPOILER ALERT! – Spider-Man won. Then Spider-Man remembered that he hadn’t taken any pictures of the fight scene, pictures for which Daily Bugle editor, J. Jonah Jameson would “pay a fortune.” That’s when Spider-Man decided to improvise.

Improvise, that is, if you mean by “improvise,” make stuff up. And seeing as how that’s what improvise means on Whose Line Is It Anyway? I guess I can mean that, too.

So Spider-Man set his camera up so that it would take pictures. Then he went to the fire bucket…

If you’re in the target Spider-Man age demographic that Marvel’s shooting for in 2015, you probably don’t remember fire buckets. Older buildings, of which schools are usually a subset, used to have fire buckets in them; buckets filled with sand. (Maybe they still have fire buckets in them. I haven’t seen one in quite a while, but I don’t know.) The intent was that someone could throw sand from the bucket on a small fire – particularly an oil fire upon which one shouldn’t throw water – and smother it with the sand.

…went to the fire bucket and grabbed a handful of sand. Spidey threw the sand into the air and dived through it, to make it look like he was fighting the sand. Then he threw another handful of sand into the air and punched it. I guess Spidey took it seriously when someone told him to go pound sand. Then Peter Parker sold the pictures of this “fight with Sandman” to Jameson for big bucks.

Wait, this was noted cheapskate J. Johan Jameson we’re talking about. Peter probably sold him the photos for chump change and a key to the employee wash room. And not even the executive washroom.

What Peter did when he sold Jameson those pictures was wrong. It was fraud. Don’t believe me. How about Noah Webster, would you believe him? He said fraud is an “intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right.”

So let’s see. Peter acted intentionally; I mean I don’t think he threw the sand into the air and punched it by accident. He perverted the truth by faking pictures of Spider-Man’s fight with Sandman and passing them off as the real thing. And he induced J. Jonah Jameson to part with something of value. Hey, chump change and a key to the employee washroom have some value. Even if it’s not the executive washroom.

Still don’t believe me? Then would you believe the New York State Assembly, which made what Peter did a crime? For the purposes of New York’s fraud prosecutions NY Penal Law 170.00 defines a “written instrument” as “any instrument or article … containing written or printed matter or the equivalent thereof used for the purpose of reciting, embodying, conveying or recording information.” A photograph would be an “instrument” containing “printed matter or the equivalent thereof” used to convey information. That takes care of the appetizer, let’s move to the main course, Forgery in the third degree. NY Penal Law 170.05 defines said crime as “falsely mak[ing] a “written instrument” with “intent to defraud, deceive or injury another.” Peter falsely made a written instrument – photographs – with the intent to deceive Jonah and injure him by taking his money. That’s close enough for government work. And considering the police and prosecutors do government work, it counts.

Finally, if you don’t believe me, would you believe Peter himself? Because, in The Amazing Spider-Man# 4, he justified what he was doing by thinking, “Since this really happened a few minutes ago, it can’t be unethical! It’s like shooting a re-take of a movie!” Methinks when a man doth protest to himself too much, he knows he’s doing something wrong. Trust me, anytime someone thinks, “this can’t be unethical,” it is.

After all, if what Peter did – faking news stories – wasn’t wrong, people such as Brian Williams, Stephen Glass, and Jayson Blair would still have their old jobs. They don’t, so you can draw your own conclusions.

Of course, that’s nothing to what Peter did to Jameson in The Amazing Spider-Man #9, but that’s, literally, another story. And, maybe another column.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #371


Let’s make it 12 Angry Men and one really pissed-off judge.

When I was practicing law in Cleveland, there was a judge who hated that movie. Really hated it. Once a prosecutor mentioned the 1957 movie during jury selection.. The judge actually interrupted the prosecutor, scolded him for mentioning the movie then exploded because the prosecutor said it was an example of how juries should deliberate.

“That’s a horrible movie!” the judge said. His rant could be heard back in chambers. On another floor. That was just his warm up. He next went into a tirade to make sure the jury knew why the movie was horrible and why no jury should do what the eighth angry man in 12 Angry Men did.

What did the Juror # 8 do that so infuriated said judge? Well, I’ll tell you. But before I tell you, I have to tell you that in order to tell you, I have to tell you important plot details about the 12 Angry Men. If you’ve never seen the movie but plan to and don’t want me to tell you telling plot details then…


… stop reading. It’s really that simple. Now cue the Bob’ll Tell Overture, because here we go.

In this flick. In this flick. In this classic flick. (Boy that got old fast!) twelve jurors were deliberating their verdict in a murder trial. The defendant was an 18-year-old from the slums of New York City on trial for stabbing his father. Eleven jurors thought the defendant was guilty. Juror # 8, didn’t agree. What followed was 90 minutes of discussion among one dozen displeased deliberaters.

One of the key pieces of evidence was the murder weapon, a switchblade knife with a carved handle just like the knife the defendant carried. Eleven jurors said the murder weapon was the defendant’s knife, so he had to be guilty. Juror # 8 argued someone else could have owned a duplicate knife and used it to kill the victim. The guilty votes argued the intricate carvings on the knife’s handle were unique. The knife was one of a kind. There wasn’t another one like it anywhere else in the city. So the murder weapon had to be the defendant’s knife.

That’s when Juror # 8 (Henry Fonda)did the thing which made that Cleveland judge so mad. (No not sire Jane Fonda.) Juror # 8 pulled a knife out of his pocket and showed it to the other jurors. Not just any knife; a knife that was identical to the murder weapon.

The previous night, Juror # 8 wandered the slums where the defendant lived. He found a knife identical to the defendant’s in a store and bought it to prove there was more than one knife that looked like the defendant’s. So it was possible the murder weapon was someone else’s knife.

I’ll give Juror # 8 credit, buying that knife before the trial was even over proved he had foresight. I can’t give Juror # 8 credit for anything else, however, because what he did was conduct his own research into the case.

Last week, as you recall, we left Will, Dr. Smith, and the Robot

Sorry, wrong recap.

Last week, I discussed why it’s improper for a juror to have personal knowledge about a case. In much the same way, it’s also improper for jurors to conduct their own research into the case or find their own evidence separate from the evidence that was introduced at trial.

Why is it improper? Juries are supposed to consider only the evidence introduced at trial. Evidence someone has testified about and then been cross-examined about. Evidence that opposing counsel has had an opportunity to challenge. When juries produce their own evidence the lawyers don’t get any chance to challenge it.

Say the defense attorney had introduced that identical knife at trial, the prosecutor could have looked for other evidence to prove the murder weapon was the defendant’s knife. Maybe the duplicate knife was part of a shipment that came in after the murder, so, up to that point, the defendant’s knife was the only knife like it in the city. We’ll never know what evidence the prosecutor might have introduced, because he never had that opportunity. The jury found new evidence after the trial part of the trial was over.

Another problem with jurors conducting their own research into a case, their research might find evidence which was inadmissible. What if the police interviewed Bill who said, “My cousin told me he saw the defendant running away from the murder scene right after it happened,” but the police never found the cousin. Bill’s statement would be inadmissible hearsay. If one of the jurors did his own investigating and also talked to Bill then told the rest of the jurors what Bill said, the jury might have believed the cousin’s statement and based a guilty verdict on the hearsay statement.

Hearsay is inadmissible, because the parties can’t cross-examine the actual declarant, who didn’t testify. Maybe the cousin hated the defendant and was lying to frame him. Had the cousin testified, the defendant could have shown this and the jury would have discounted his statement. As no one can cross-examine a hearsay declarant for possible bias, hearsay isn’t admissible. But if the jury’s private research finds this inadmissible hearsay and considers it, it’s considering evidence the judge wouldn’t have allowed at trial.

12 Angry Men extolled the virtues of jurors conducting their own research and collecting their own evidence, which is why a judge in Cleveland had a problem with it. Meanwhile, the public defender in Cleveland, me, had a different problem with the movie. It portrays defense attorneys in a bad light. You didn’t even see the defense attorney and it still portrayed him in a bad light.

The prosecutor’s case relied heavily on the fact that the knife was unique. But a duplicate knife was so easy to locate Juror # 8 found one in only one day. Why didn’t defense counsel do this?

How difficult would it have been for defense counsel to check a few stores and find a duplicate knife? Based on how long it took Juror # 8, not very difficult at all. Even if the defense attorney didn’t have any staff or investigators, he could have done it himself. All he had to do was skip I Love Lucy one night and check into things.

Maybe he didn’t know Desi Arnaz had the foresight to shoot I Love Lucy on film not video tape so that it would last for decades and be syndicated forever. Maybe he didn’t know he’d have another chance, or ten, to see that episode in reruns. (If it was the Vitameatavegamin episode, more like one hundred chances.) Even if he thought it was his only chance to see the episode, would skipping I Love Lucy to do his job properly have been too much to ask of the defense attorney?

If the defense attorney had done his job properly, he could have introduced this evidence during the trial and made his client’s acquittal easier. Not to mention making life easier for some poor unsuspecting prosecuting attorney in Cleveland forty years later who wouldn’t have incurred a judge’s renown and redoutable robe-ed wrath.

The Law Is A Ass


Batman_Gotham_Adventures_Vol_1_35So how was this even remotely fair?

First, Mark Filcher was on trial with a name like Filcher. Filcher? From the 16th Century word filch meaning “to appropriate furtively or casually?” Why didn’t Mark just change his name to I. Emma Thief and save us all a lot of trouble?

Second, the jury of Mr. Filcher’s peers included Bruce Wayne; billionaire playboy, corporate CEO, and phila… er, phila… er, yes, er, Good Deed Doer. I’m not saying it was unfair because a billionaire playboy and philanthropist wasn’t exactly a peer of career criminal Mark Filcher. (Although, truth be told, I’m not sure an actual peer is Bruce Wayne’s peer.) I’m saying it was unfair because, this being a Batman comic it should come as no surprise to you that Filcher was apprehended by Batman. And this should really come as no surprise to you; Bruce Wayne is Batman.

Seriously, how fair is it to have the guy who arrested you sitting on the jury which is deciding whether you’re guilty or not guilty of the crime that guy arrested you for?

(Please tell me I don’t actually have to answer that last question.)

Bruce Wayne had personal knowledge about the case. People with personal knowledge of a case aren’t supposed to sit on juries. They might decide the case based on their own knowledge of the case rather than the facts presented in evidence. In fact, that’s one of the standard questions that’s asked of prospective jurors, whether they’ve read news paper accounts or heard new stories about the case or have any personal knowledge about the case. It’s asked to keep people with personal knowledge of the case off the jury.

To be fair, Bruce did try to get off the jury; with an attempt that was more half-hearted than the Tin Woodsman without his testimonial.


Question: “And is there any reason you shouldn’t be on this jury?” Answer: “Yes. I’m Batman.”


That was fine as far as it went. After all, Bruce was under oath and couldn’t lie, and his being Batman was both the truth and a valid reason why he shouldn’t be on the jury. Unfortunately, as far as it went was about as far as Usian Bolt went on that Segway. After the judge admonished Bruce to refrain from further jokes, Bruce ended up on the jury.

It would have been easy for Bruce to get off the jury. He could have said Wayne Enterprises’s business would suffer were he to serve on the jury instead of being its CEO. I’ve seen this excuse used many times by people who want to get off a jury. And successfully. Okay usually by rich people who contributed to the judge’s campaign. But Bruce is certainly rich enough. So, unless he contributed to the trial judge’s opponent, he would have qualified.

Or Bruce could have said, quite truthfully, “I saw Batman arresting Mr. Filcher.” Everyone would assumed Bruce was standing on the street looking up when Batman arrested Filcher and saw what happened. But because he had seen the arrest and had some personal knowledge of the event, he would have been excused from the jury.

Or Bruce could have said, again quite truthfully, that Batman saved his life on more than on occasion, so he tends to believe Batman doesn’t make mistakes. (Remember this is the Batman from Batman the Animated Series we’re talking about, not the sociopathic buffoon who’s been wearing the costume since the New 52 started. It’s possible people would believe animated Batman was incapable of mistakes.) Bruce could have said he believed anyone Batman arrested was probably guilty so his ability to be fair and impartial toward Mr. Filcher would be compromised. Quite truthful. And it would have gotten him bounced from the jury faster than asking, “Can I plug in the electric chair?”

Any of those responses would have gotten Bruce excluded from the jury. Unlike Bruce Wayne or Wile E. Coyote, I am not a super genius. So if I was smart enough to figure out how Bruce could have gotten off Filcher’s jury, what’s Bruce’s excuse for not being excused?

Bruce didn’t try to get off the jury so heard the case. Probably fortunate for justice, but unfortunate for Mr. Filcher. Or any concept of due process. The jury’s initial vote was 11-1 for acquittal. But Bruce knew Filcher was guilty. So in a reverse 12 Angry Men, he filibustered until he was able to convince the other eleven to change their minds and vote 12 to 0 for conviction.

Bruce convinced the jury, in large part, because he established that Filcher lied about his alibi. The attempted kidnapping for which Filcher was being tried occurred in the Stovertown neighborhood of Gotham City at 6:00 p.m. Filcher claimed he was in the Kubrick District until 6:00 p.m. then drove to Templeville where he was arrested at 6:15. So he couldn’t have been in Stovertown to attempt the kidnapping. Bruce found a juror who lived in Kubrick and that juror said in rush hour traffic it would take forty minutes to get from Kubrick to Templeville. Filcher couldn’t have stayed in Kubrick until 6:00 then gotten to Templeville by 6:15, as he claimed. It was more likely that he left Kubrick at 5:00 – which was the last time anyone remembered seeing him in Kubrick – went to Stoverville, attempted the kidnapping, then fled to Templeville. I mention this to point out that personal knowledge of this type – how long it might take to drive from one part of town to another – is not impermissible in jury deliberations.

Jurors are allowed to bring personal knowledge of a general nature to deliberations. They’re not required to forget everything they know; although I swear some of the juries I had did just that. Jurors have general knowledge about things like what time the sun rises, when does Easter fall each year, and what is the airspeed velocity of an unladen swallow? Those sort of things, jurors can bring to and use in their deliberations. They just can’t have personal knowledge about the specific facts and details of the case they’re hearing.

I guess we’re supposed to be happy about Bruce staying on the jury, because he made sure the bad guy was actually convicted of the crime he actually committed. I wasn’t happy, because, as I said, Bruce should never have been on the jury. Defendants are entitled to juries that are fair and impartial, not juries that are, to be fair, partially partial.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #369


Because it had three stories in it, that’s why.

Yes, we’re playing Jeopardy. That’s the answer. And the correct question is, why did you write three columns about Daredevil v4 #15.1?

The third story in this extra-long volume with the screwy numbering – “Chasing the Devil” – featured a familiar scene. No, not the balcony scene from Romeo and Juliet– please tell me that scene is familiar to you and I didn’t need to go with the food fight from Animal House. Rather this is the familiar scene that ends the standard super hero-super villain fight scene.

In this version of the scene, Daredevil was fighting Diablo, the centuries-old master of alchemy who first appeared in Fantastic Four #30 and who, despite the fact that he is centuries-old and a master of alchemy, is a surprisingly second-rate super villain. Let’s face it, he appeared in the third story in this particular comic, a story that was only eight pages long. Considering that some of the story was set-up and some of it denouement, the actual number of pages devoted to the fight was three and one-half. So, no, we’re not talking an A-lister here. B-lister, anyone? C-lister? Let’s just say, Diablo would be suffering delusions of grandeur if he auditioned for Dancing With the Stars.

So after their mercifully brief fight, Daredevil tied Diablo up and left him hanging for the cops to find and arrest. The cops did find Diablo, did arrest him and, I assume, Diablo was prosecuted for his misdeeds. I can only assume, because we didn’t see the aftermath. Apparently, the story didn’t want to spend any more time with the loser villain, either.

However, assuming Diablo was prosecuted for his crimes, the fact that he was prosecuted should be ringing more bells than Quasimodo in the Westminster Concert Bell Choir. Because we have talked about this before. Masked super heroes catching criminals, leaving them for the cops to find, then walking – or swinging – away before the police have a chance to question them or get their statements. I’ve noted that without that an actual conversation with the super hero involved, the police wouldn’t have enough probable cause to arrest the bad guy in question, because they didn’t see the baddie committing any crime and the person who did was nowhere to be found.

And even if the police did arrest the bad guy, taking him to trial would be trickier than a Penn & Teller special. Under the Sixth Amendment’s Right of Confrontation, the defendant has the right to cross-examine the state’s witnesses. But the defendant wouldn’t be able to cross-examine a masked witness, because the defendant wouldn’t know who that witness was, so wouldn’t be able to question the witness about possible biases.

Masked super heroes wouldn’t be allowed to testify in court without revealing their secret identities, which they wouldn’t want to do. (If they wanted to reveal their secret identities, they wouldn’t wear masks. I mean, what’s the mask for other than keeping a secret identity secret? A bad case of hat hair?) So if the masked heroes don’t reveal their secret identities and aren’t allowed to testify, there would be no evidence against the bad guy and said bad guy would be found not guilty.

That’s the way it would usually go, in one of the average super hero scenarios. That’s not, however, the way it would have gone in Daredevil v4 #15.1. Because this story was smarter than the average super hero scenario.

It didn’t have Daredevil chance upon the super villain doing his super villainy by happenstance. No, it had Daredevil overhear a police radio broadcast that “a major drug deal involving ‘Diablo’ and a number of known offenders is under way at the Syracuse Salt Mines.” (Hey, I know there are operating salt mines underneath Cleveland, Ohio. Are there actually salt mines under New York City, too? Not a big deal, I just wondered.)

The police already knew that Diablo was around and dealing drugs. The police didn’t need Daredevil for the information about Diablo’s diabolic doings, they already had it. The story didn’t say how the police knew. Could have been an eyewitness account from another witness. Could have been a undercover narcotics officer report. Could have been a tip from the Morton Salt Girl. How they got the information doesn’t matter. What’s important is, they had it.

And because the police had the information, that means someone other than Daredevil – the someone who told the police about the drug deal in the salt mines in the first place – could have testified at Diablo’s trial and supplied the jury with the information it needed to convict Diablo.

Of course, considering Esteban Corazón de Ablo goes by the nom de guerre of Diablo, maybe not even that information was necessary. Get people on the jury people who know that Diablo means devil and it might be a short trial.

(“Ladies and Gentlemen of the jury, the defendant in this case goes by the name Diablo.”


But even if the jury was conscientious and required more information than the defendant’s chosen nickname, whoever supplied the information to the police should have been enough information for a conviction. The police wouldn’t need Daredevil on the witness stand.

Tony Isabella once told me that whenever possible he’d have his super hero-super villain fights take place in highly public places before lots and lots of witnesses. That way there would be plenty of people around who could testify against the super villain, even if the super hero couldn’t. A wise practice. Prosecutors have enough trials and tribulations without extra trialing tribulations.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #368


First of all, when a lawyer gets a case dismissed with prejudice, that doesn’t mean it’s because the lawyer was the new, reconfigured Atticus Finch.

So what does “dismissed with prejudice” mean then? That’s the question I promised to answer last week, while discussing Daredevil v.4 #15.1, because a judge dismissed a criminal case against Matt Murdock’s client with prejudice. And here I am this week doing what I promised to do last week by answering the question.

Not all lawsuits end in a jury verdict. In fact, to tell the truth, most of them don’t. (Jeez, doing what I promised to do and telling the truth; that’s enough to get me kicked out of my lawyer in good standing status. If I were still a lawyer or ever had a good standing.) Most cases end long before a trial or a jury verdict. Many end with some sort of compromise deal being reached between the two parties. Either a settlement in a civil case or a plea bargain in a criminal case. Others end with one of the sides filing a motion to dismiss the case and the judge granting that motion. Still others end in other ways, but as we’re talking about motions to dismiss today, we won’t bother with those still other ways.

Either side can file a motion to dismiss, the plaintiffs or defendants in civil cases or the prosecutors or defendants in criminal cases. (Please note, in a lawsuit – both civil and criminal lawsuits – the party bringing the suit is the plaintiff. Plaintiffs in criminal cases are usually called prosecutors or the state, but they’re still the plaintiffs. For the sake of convenience, I’m going to use the term “plaintiff” to refer to both civil plaintiffs and prosecutors.) Usually one side files the motion to dismiss because there is a weakness in the plaintiff’s case. Plaintiffs, for example, might file a motion to buy some more time to develop their case. Defendants can file to dismiss, if they feel that the charging papers – either a civil complaint or a criminal indictment – fail to set forth an adequate case to present to a jury.

When a judge is presented with a motion to dismiss, the judge can either grant the motion or deny it. Most judges grant the motion to dismiss, if for no other reason than that it gets the case of the judge’s docket. Do judges like to get cases off their dockets? Does Sonny the Cuckoo Bird like Coco Puffs? If a judge grants the motion to dismiss, the judge can grant it in one of two ways. The judge can grant the motion with pride – judges do almost everything with pride – but either with or without prejudice.

Ah five paragraphs into the column and finally we’re reaching the Clara Peller part. You know, where the beef is.

If a judge grants a motion to dismiss without prejudice , that means that the plaintiff can file the case again in the future. If, however, the judge grants the motion to dismiss with prejudice, that means the plaintiff cannot file the case again. The plaintiff can appeal the judge’s dismissal with prejudice. But absent an appeals court overturning the dismissal with prejudice, the plaintiff is barred from ever filing that case in the future.

Common reasons for dismissing a case with prejudice include fraud on the part of the plaintiffs or the case being barred by the statute of limitations or the case being barred by res judicata because the plaintiffs brought the same matter to trial in an earlier case and lost. There are, of course more reasons. Lots more. (Seriously, you think there’s actually a legal principle that’s so simple it could be answered completely with only three examples? The law is large, it contains multitudes. And that’s just the tax code.)

In the Daredevil story, a murder charge against one Luiz Sifuentes was dismissed with prejudice, meaning the state of New York could not refile the same charges against Mr. Sifuentes in the future. Usually in criminal cases a case is dismissed with prejudice for one of a few reasons. If the defendant was already tried for the same charges and found not guilty, the defendant can’t be tried on those charges a second time because of the Double Jeopardy Clause of the Fifth Amendment. So if the state were to bring the same charges a second time and the trial court dismissed the case because of double jeopardy, that would be a dismissal with prejudice.

Another dismissal with prejudice would be if the state brought charges after the statute of limitations expired. In that case, the state would be barred from ever filing charges again, because of the statute of limitations.

Of if the defendant’s case were dismissed because the state didn’t bring the defendant to trial in compliance with the Speedy Trial clause of the Sixth Amendment that would also be a dismissal with prejudice, because the speedy trial violation would prevent the state from pursuing the charges in the future.

Those are some of the major reasons that a criminal case can be dismissed with prejudice. There are, naturally others. Multitudes, remember?

In the Sifuentes case, Sifuentes was charged with shooting a man to death in Central Park. Daredevil investigated the case and caught the two other people who were actually guilty of the crime. These two confessed to the murder after their fingerprints were found on the bullets in the cylinder of the murder weapon. They also admitted they didn’t know Luiz Sifuentes. So the judge dismissed the case against Sifuentes with prejudice, meaning that the state could never bring these charges against Mr. Sifuentes again.

That’s unlikely. The trial court wouldn’t want to do something which precluded the state from ever filing the charges again. What, for example, would happen if the other two defendants recanted their stories and said Sifuentes was also in on the murder? Or what if the state learned that the other two defendants were friends with Sifuentes and lied about not knowing him to get their friend out of trouble? In either scenario, the state would want to bring murder charges against Sifuentes again, but wouldn’t be able to do so, because the case had been dismissed with prejudice. So it’s not likely that the trial court would have granted Sifuentes’s motion to dismiss with prejudice, as it wouldn’t want to preclude the state from pursuing a case against Sifuentes, should new facts establishing Sifuentes’s actual guilt ever come to light.

What would probably have happened in the Sifuentes case is that the judge would have granted the motion to dismiss, based on the fact that Mr. Sifuentes appeared to be innocent of the charges. But it would have dismissed the case without prejudice. The state of New York would then have to decide whether it wanted to pursue a case against Sifuentes. If it believed that he was actually innocent of the crime, then it wouldn’t file the charges again and the matter would be over. But if, after further investigation, the State felt that Sifuentes was actually involved in the killing, it would file the charges against him a second time.

The trial court wouldn’t want to prejudge the state’s future ability to prosecute Mr. Sifuentes, so it wouldn’t grant a dismissal with prejudice. Oh and one more thing, don’t confuse prejudging with deciding which hybrid car to buy. Prius judging is entirely different.

The Law Is A Ass #367: Daredevil’s Work Ethic Actually Works For A Change

Daredevil Vol 4. #15.1Will the real Matt Murdock please stand up?

I have, in the past, detailed incidents where Matt Murdock, New York lawyer and secret identity of the super hero Daredevil, put the ick in legal ethics. I have, in fact, done more detailing than a guy prepping cars for the show room.

Then along came Daredevil v 4 #15.1 and its story “Worlds Collide.” It’s a story set so early in the career of Matt Murdock and Daredevil, that he and Foggy Nelson hadn’t even formed the law firm Nelson and Murdock yet. Matt was a first-year associate at the prestigious Manhattan law firm Hutchins & Wheeler. Was still wearing his original red and yellow costume. And, apparently, was so new to the practice of law that Matt hadn’t yet learned how easy it was to game the system.

On one of his first patrols as Daredevil found a gunshot victim lying dead in Central Park. He heard the elevated heartbeat of three men running away from the crime scene. He chased the closest of the three men, Luiz Sifeuntes, who threw the murder weapon away as he ran. Then Daredevil caught Sifuentes, tied him to a tree, and made an anonymous call to the police.

Sometime later, Hutchins & Wheeler took on Mr. Sifuentes’s case as part of its obligation to provide five thousand hours of pro bono work. Mr. Wheeler assigned the case to Matt.

When Matt talked with Sifuentes, his client said he was walking in the park and went to the crime scene after he heard gunshots. He saw the victim lying on the ground, saw the gun, and picked it up for no known reason other than the one we all know; that’s what innocent people in stories always do when they find dead bodies with recently-fired guns lying next to them. They pick up the furshlugginer gun and give the state what looks like an air-trite case against them. Seriously, this plot device has been used so often that I think complaining that it’s a cliché has become a cliché.

Matt realized he shouldn’t represent Sifuentes, as he was the person who captured Sifuentes in the first place, so he tried to get off the case. Which was the ethical thing to do, as Matt had reason to doubt his ability to be objective and represent his client zealously. But Wheeler wouldn’t let Matt quit. So Matt, who couldn’t reveal the true reason he wanted off the case – i.e. his secret identity – continued to represent his client as best he could. He filed a motion to dismiss the case during the pre-trial probable cause hearing. The grounds for the motion were that Sifuentes was captured by a vigilante who might not even testify so the state wouldn’t be able to make its case.

This was a very sound argument. As I’ve written in the past, when the heroes capture criminals but don’t stick around to supply evidence, the state has no witnesses who can testify as to the defendant’s guilt. Without Daredevil’s testimony, the state would, literally, have no witness who could put Sifuentes at the scene of the crime or in possession of the murder weapon. Judge Mandelbaum said she would take Matt’s argument under advisement and didn’t rule on it.

Meanwhile, the prosecutor, who realized there was a major weakness in her case, offered Matt the chance to plead his client to manslaughter in the second degree. Matt took the offer to his client, because, as he correctly stated, he had a legal obligation to present any plea offer to his client.

A lawyer does have the ethical obligation to present all plea offers to a client. Even ones the lawyer might think are a bad deal. The lawyer can tell the client that he feels the plea offer is a bad deal and advise the client to reject it. But the lawyer still has the legal obligation to present the offer to the client and let the client decide whether he wants to accept it.

Matt advised his client that the offer was a good deal, but only if he were guilty. Again a very ethical and proper way to act. The client decided to accept the offer, because he felt a guaranteed fifteen year sentence – with parole after ten years with good behavior – was better than risking a possible twenty-five year to life sentence should he risk a trial and be convicted of murder in the second degree.

That’s how Matt spent his days, representing Luiz Sifuentes. That’s also how he spent his nights, because at night Daredevil went looking for, and ultimately found the two men actually involved in the shooting.

The next morning, Judge Mandelbaum denied Matt’s motion. She ruled that when an arrest was made by a vigilante such as Daredevil the decision of whether to proceed with that case should be handled on a case-by-case basis. Each case must be examined on its own merits, rather than allow a blanket ruling that all defendants apprehended by masked super heroes should be dismissed. As Luis Sifuentes was found at the scene and his fingerprints were on the murder weapon, that was enough evidence to bind him over for trial. The trial could decide whether there was enough evidence to convict him, should the vigilante Daredevil not testify.

This was absolutely the correct decision. No court would ever make a blanket ruling that any defendant apprehended by masked a vigilante should be set free. Such blanket rulings would prevent courts from reaching the ultimate question: the defendants’ quilt or innocence. But there was another reason why Judge Mandelbaum was correct in her ruling.

Matt made his motion to dismiss during a probable cause hearing. All that is decided in such hearings is whether there is enough evidence to proceed to trial. The state only has to prove that there’s sufficient evidence to establish that it is more probable than not that the defendant committed the crime. The state does not have to prove guilt beyond a reasonable doubt. So in a probable cause hearing, a police officer could testify that the department received an anonymous phone call of a shooting in Central Park and that when they arrived they found the defendant tied to a tree next to the victim and that the murder weapon, with the defendant’s fingerprints on it, was also found next to the victim. That degree of evidence might not be enough to prove guilt beyond a reasonable doubt in trial, should Daredevil not testify. But it would have been enough for a probable cause hearing. So Judge Mandelbaum was correct in denying the motion in the probable cause hearing.

Matt then informed the court that Mr. Sifuentes was not going to proceed with his plea bargain, because the previous night two other men were apprehended in connection with the murder. Matt further said that he believed any fingerprints on the bullets in the murder weapon would match one of these two men, not Mr. Sifuentes’s and that both men said they did not know Luiz Sifuentes. So Matt made a new motion to dismiss, one based on the argument that Mr. Sifuentes was actually innocent of the charges leveled against him.

Yes, I know this case was early in Matt’s career. Maybe because he was younger and just starting out, Matt wasn’t as daring as he would become. Or as willing to stretch his legal ethics worse than Spanx on Rebel Wilson. But it was so refreshing to read a story where Matt acted ethically and properly. Any chance we could get more of them?

A week later, Matt was rewarded for his ethical actions. I don’t know what actually happened. The two murderers probably confessed and exonerated Luis Sifuentes. All I know is that Judge Mandelbaum dismissed all the charges against Sifuentes “with prejudice.”

What’s that mean, that the case against Luis Sifuentes was dismissed “with prejudice?” Why, it means I have something to write about next week.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #366: ROUND UP THE USUAL SUSPICIONS

lawassOkay, a show of hands, who’s ever heard them say this one on a TV show? POLICE: “You’re under arrest.” SUSPECT: “On what charge?” POLICE: “Suspicion of murder.”

Why did I think a show of hands would work in a written medium?

Here’s a little tip for the next time any of you might be writing dialog for a police procedural; unless you’ve got Joan Fontaine married to Cary Grant in a Hitchcock movie, there’s no such thing as suspicion of murder. Or suspicion of anything, for that matter.

In our criminal justice system, all crimes are statutory. That means laws were written which created the crimes and defined the crimes’ elements. Let’s take murder, for example, because that’s the crime people are arrested for “suspicion of” committing on TV. The elements of murder are, most commonly, that the actor 1) purposely, 2) caused the death, 3) of another person. So if Cain shoots Abel with a gun and Abel dies we have a crime of biblical proportions. We also have all the elements of murder. But if even one element is missing, we don’t have murder. We may have some crime, but it’s not murder.

Say Cain didn’t know the gun was loaded then shot Abel and Abel died. Then Cain wouldn’t be guilty of murder, because Cain didn’t kill Abel on purpose. It would be some form of a negligent homicide, but not a murder.

Or if Cain shot Abel and Abel didn’t die, you wouldn’t have a murder. You’d have an assault of some sort, but not a murder, because no one died.

Finally, if Cain killed Abel, but Abel was a dog you wouldn’t have murder, because no person died. You’d have some form of animal abuse, but not a murder. (And calm down, PETA, no animals were harmed in the writing of this hypothetical.)

Suspicion is not a crime whose elements are defined in a statute. At least, I’ve never seen any statute which created a crime called suspicion and I’ve looked at the statutes of a lot of states. If your jurisdiction has a crime called suspicion on its books, let me know. I’d love to find out what it’s elements are. (I’m guessing oxygen, because it would be a lot of hot air.) However, because there’s not crime called suspicion on the books, the police can’t arrest someone for suspicion.

In the same way that the police can’t arrest you for suspicion, because it’s not a crime, they also can’t arrest you simply because they suspect you committed a crime. An arrest has to be based on probable cause not suspicion.

To have probable cause, the police have to be able to establish that it’s more probable than not that every element of the crime exists. (You do remember the elements of the crime, don’t you? We’ve talked about them periodically today.) The police also have to be able to establish that it’s more probable than not that the person they suspect of committing the crime, performed the acts which violated the statute. If they merely suspect someone, but don’t have probable cause, they can’t legally arrest that person.

In Terry v. Ohio, the Supreme Court ruled that the police may temporarily stop someone if they reasonably suspect that the person may be about to commit a crime. If the police see someone who looks like he’s casing a store he intends to rob later, the police may reasonably suspect he’s going to commit a robbery. In that case, the police may stop that person and ask him questions find out what he’s up to. Once the police have done that, they have to let the person go. The bad news is they can’t arrest him. The good news is, as the person knows the police are on to him, he’ll probably abandon his plans to rob the store.

If the police happen upon a crime – say someone has just been murdered in an alley – and the police see somebody lurking around, they may reasonably suspect that somebody met the body while the body was still alive and killed him. Under the Terry rule, the police may approach that person and ask him some questions. But they may not arrest him no matter how reasonable their suspicion may be.

Sometimes while questioning the person they suspect, the police get some actual information which gives them probable cause. A witness might come up and say he saw that person commit the murder. Or the suspect might make the classic Murder, She Wrote mistake and says something about the corpse that only the murderer could know. Once something like that happens and the police get probable cause, then they can arrest the person. But not before. Not when they only suspect him.

So, if the police can’t arrest someone for suspicion of committing a crime, how did that whole cliché start? Here’s my theory.

Last week, I talked about another common, but illegal, police practice: the investigatory hold. That’s when the police put someone they suspect of committing a crime into custody so that they can investigate the matter further. If the police get enough information to charge the person, they will present the case to the district attorney for formal charging. If they don’t they’ll release the person. I suspect arresting “on suspicion” was simply another way of saying performing an investigatory hold that the police started using because it sounds cleaner. It sounds more like the person being detained actually did something wrong – after all, he’s suspected of something rather than being investigated.

Well, police in movies and on TV, anyway. Did the police in the real world ever actually say that? I don’t know. But I have my suspicions.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #365: TV COPS PUT A HOLD ON THE CONSTITUTION

chief_wiggumIf I’ve heard it once, I’ve heard it … Okay, I didn’t actually count how many times I’ve heard it. But I’ve heard it a lot. In cop shows. In police movies. In crime novels. In detective comics, and probably Detective Comics. Pretty much any gendarme genre. Those immortal words spoken by police officers everywhere, “We can hold you for 72 hours without charging you.”

Actually, the police can’t. But they do it anyway

What the oft-heard line is referring to is the policy of an investigatory hold . Under the practice, the police would place someone in custody without charging him or affording him bail – assuming he could afford bail in the first place – for a period of time. During this time, the police would investigate the crime more fully. At the end of the investigatory hold period, the person being investigated would either be formally charged or released.

Under the 14th Amendment right to liberty, people can only be denied their right to liberty if they are afforded full due process – you know; formal arrest, formal charges, bail hearing, trial. That whole megillah. Without those things, there’s a 800-pound gorilla in the room. A gorilla called the Constitution. (What, you thought I was going to say the gorilla was called Magilla?)

In some jurisdictions, the investigatory hold period is 20 hours. In some it’s 24 hours. In others, it’s 48 hours. In some – such as in Cleveland, Ohio until an administrative judge ended the practice in 2012 – it was 72 hours.

Investigatory holds happen for a couple of reasons, both of which are unconstitutional and illegal. The first is that if person is taken into custody and held pending an investigation, it usually takes between 48 and 72 hours for a lawyer to be able to get a writ of habeas corpus before a judge who can rule that the detainee be freed. That’s one origin for the incorrect police notion that they can hold suspects for 72 hours withoug charging them.

It should be noted, as well, that this paragraph applies to regular people who have been taken into custody. So-called military detainees or prisoners of an undeclared war who are rotting away in military prisons such as Quantanamo Bay need not apply. For a habeas corpus, that is, because they won’t get one.

The other reason for the investigatory hold is that the police misinterpret certain laws to claim that the laws give them the statutory authority to conduct investigatory holds. They don’t. But the police claim, incorrectly, that they do.

What frequently happens is that a state will pass a law requiring that when a person is arrested without a warrant, that person must be formally charged or released within some period of time. The statute will then set a time period which it intended to be the maximum period. Prisoners could always be charged or brought before a magistrate in less time than the statutory maximum, but it couldn’t happen in more than the maximum time set by the law. That statutory time limit varied from state to state. It could be 20 hours, 24 hours, 48 hours, or 72 hours depending on the state and the statute. (Do those numbers look familiar? They should.)


These statutes were intended to benefit people who has been arrested. They were meant to guarantee that those being arrested be formally charged or brought before a judge for a probable cause hearing and bail within a set time. They were meant to insure that people were not being held in custody indefinitely. The statutes were created, because formal charges and judges aren’t always available as soon as a person is arrested.

The police can arrest people, but the police can’t charge them with a crime. Only a prosecutor’s office can bring formal charges. In addition, the police can’t set bail or determine whether there is probable cause that those being arrested committed the crime for which they were arrested. That power belongs only to judges or magistrates. However, people aren’t always arrested when the prosecutor’s office is open or when court is in session.

People are frequently arrested at night. Or on the weekends. I represented a lot of people who had been arrested. (In fact, I’ll bet I only represented people who had been arrested.) So I can tell you from personal experience – not the experience of my having been arrested but the experience of talking to clients who had been arrested – a good number of them are arrested at night or on the weekend. That’s because a lot of crimes are committed at night or on the weekend.

Here’s the thing about prosecutor and courts. They have regular office hours. 9 to 5 type hours. Prosecutor’s offices and courts aren’t usually open for business at night or on the weekends. So people being arrested at those times can’t be brought before a judge or formally charged as soon as they’re arrested. They have to wait until the prosecutor’s office is open or court is in session.

The statutes I talked about earlier were adopted to make sure that people arrested after hours were brought before a magistrate or formally charged as soon as possible. So they’d set a time limit in the statute, mandating that charges be filed or magistrates be faced within that time limit.

Many police departments started using the statutes as a weapon against the people who were arrested, even though the statutes were intended to be a shield for the people being arrested. The police started interpreting the statutes as something that authorized them to take people into custody, while they investigated the crimes. They’d say, the statute permits us to hold suspects for what ever period of time is put into the statute without charging them or taking them before a judge. So the police would arrest a person to investigate a crime further, and hold the person in custody for the maximum time the statute allowed pending the results of that further investigation.

The practice is questionable. At best. At worst it’s unconstitutional and illegal. As I’m a glass-half-empty kind of guy, I’m going with the worst-case scenario. I say investigatory holds are unconstitutional and illegal.

I’m not alone in saying this.

Some District attorney offices have been polled as to whether they believe the practice of investigatory holds is legal. The district attorney offices polled routinely concluded it wasn’t.

The Supreme Court of the United States has held on numerous occasions that investigatory detentions are illegal. The court found such detentions to be arrests, and arrests which are made as a pretext for finding evidence violates the 4th Amendment protection against unreasonable seizure.

Courts also hold that detaining a person for investigation for a period of time longer than the earliest practical time that person could be brought before a magistrate is unconstitutional. So if a statute requires that the detainee be brought before a magistrate within 48 hours, but the police could have brought the detainee before a magistrate within 24 hours, the extended investigatory detention was unconstitutional.

Investigatory holds still exist. They shouldn’t. They violate the 4th Amendment because they’re unreasonable seizures. They violate the 6th Amendment, because police say the right to counsel doesn’t begin until formal charges are filed, so we can question this detainee without an attorney present as long as charges haven’t been filed. They violate the 8th Amendment, because they perform an end around to the Amendment’s requirement that people who are arrested are entitled to bail. They violate the 14th Amendment, because every one of the problems I just listed denies the detainee of liberty without due process of law. And they violate any concept of decency.

So the next time you hear the line, “We can hold you for 72 hours without charging you,” on TV, remember doing that wrecks and violates the Constitution. And there’s already too much wrecks and violates on television.