Category: Columns

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The Law is a Ass #463: Sherlock Takes the Law for 2000

What do I have to say about a Sherlock Holmes story that’s hard to swallow? That’s alimentary, my dear Watson. I say:

The Adventure of the Innocent Murderess,” the June 30, 1947 episode of the radio show The New Adventures of Sherlock Holmes, was a gripping tale of murder and intrigue. Gripping because it was a fevered mess.

The episode involved Igoru Priscop, an official of the People’s Party of the European country of Grotznia, a fictional country that, like most fictional European countries, was smaller than Liechtenstein but bigger than a bread box. The People’s Party of Grotznia had been deposed by the Royalists. Now the International Committee of Power was meeting in the Hague to decide whether the Royalists or the People’s Party were the rightful rulers of Grotznia. Where did The International Committee of Power meet, the International House of Pancakes?

Priscop was in London to meet with exiled leaders of the People’s Party. Because Royalists dominated the Grotznian, Priscop had to keep his presence in London a secret. Sherlock Holmes agreed to shelter him in 221b Baker Street.

While hiding in Baker Street, Priscop ordered some wine. After it was delivered, Priscop proceeded to drink it. While he did, tragedy struck. Tragedy and a bullet. A young woman stormed into Holmes’s flat and shot Priscop. Priscop was dead.

Shortly thereafter, the Hague ruled the People’s Party was always the rightful government of Grotznia. Because Priscop was dead, Carlo Tarfush of the People’s Party became the Grotznian ambassador to England. Tarfush’s fiancée, Ladri Mikelto was the young woman who shot Priscop, which, we learned later, she did to insure her fiancé would become ambassador.

During Ladri’s trial, defense counsel produced evidence that Priscop had died of cyanide poisoning, which had gone undetected, because everyone assumed he died of gunshots so didn’t look for poison. (Or so the story said. I can’t think of a way to explain the unprofessional gaff of a coroner who didn’t perform a complete autopsy. Seems a little slipshod tomb me.) Anyway, Ladri was found not guilty.

After the trial, Tarfush challenged Holmes to discover the real murderer or become the laughing stock of England. (By the way, what is a laughing stock anyway, a soup base prepared from hyena meat?)

Holmes tested a wine stain left in his flat and found it contained cyanide. No one could have doctored the wine after it was delivered, so he tracked down the boy who delivered the wine. The delivery boy told Holmes that a woman, one the boy later identified as Ladri, approached him and offered to buy him a cake in a nearby tea shop. Holmes deduced that while there Ladri switched the original wine bottle for the one she had doctored with cyanide.

Holmes confronted Ladri with his proofs. She freely admitted her guilt. Then she gloated that under England’s double jeopardy law, she couldn’t be tried for murdering Priscop a second time.

Holmes brooded and thought and read. Then he had the solution to the problem.

At a formal party in the embassy, Holmes accused Ladri. He reminded everyone that the Hague had ruled the People’s Party was always the rightful ruler of Grotznia. So when he and Watson were harboring Priscop, their lodgings at 221b Baker Street became the true Grotznian embassy. Holmes also pointed out that embassies are extra-territorial and anyone in the Grotznian embassy was on Grotznian soil, not British soil. So any crime committed in the embassy was subject to Grotznian law, not British law. And, as Grotznia didn’t recognize double jeopardy, Ladri could be tried for murder a second time in Grotznia.

But when Ladri switched wine bottles, she was in a tea shop not in 221b Baker Street. So when she committed her crime, she wasn’t in the Grotznian embassy, she was firmly on British soil. After all, can anything be more firmly British than a tea shop? That means British law and it’s annoying double jeopardy rule would apply to her crime. You may wonder, was Holmes correct. Or was he talking through his deerstalker?

Despite this apparent flaw, I can think of a way to get Holmes out of this Inver-mess he was cloaked in. Two, actually, and I won’t even charge him extra for the second one. Sherlock-y for him that I happened along.

Yes, Ladri switched the wine bottles in a tea shop, but she performed another key part of her plan in 221b Baker Street, shooting Priscop. Ladri shot Priscop to obscure the cause of death and keep the coroner from checking for poison. If the police knew Priscop was poisoned, they would realize the poison came from the wine bottle and trace the poison back to her. So, the shooting was a key part of her plan, both because it kept the police from looking for poison and because it set up her double jeopardy plot and the shooting was committed in 221b.

Ladri could be tried in any jurisdiction where an important step of her murder occurred. In England, where the tea shop was, or in Grotznia, where the embassy was. Grotznia did have jurisdiction over her case, including its law not recognizing double jeopardy.

Remember I said I had two ways out for Holmes? I do. The first is the dual sovereignty argument you just read. The second is that Ladri couldn’t invoke double jeopardy, because it didn’t apply in her case.

Ladri was tried for murdering Priscop by shooting him. She was never tried for poisoning him. Poisoning Priscop and shooting Priscop were two separate and distinct acts. Double jeopardy wouldn’t preclude her second trial, because criminal prosecutions put a person on trail for what act the person committed, not for the crime’s name. Let’s look at a hypothetical.

Suppose a man commits a robbery and then later robs the same victim second time. The man is tried for the first robbery and acquitted. In that scenario, double jeopardy would not prevent that man from being tried and convicted of that second robbery, because the man wouldn’t have been tried for the same offense twice. Rather he’d be tried for two different offenses both of which happened to violate the same law. The crimes would have the same name. The victim would even have the same name. But the two crimes were different acts.

It would be folly for any court to rule that once a person was acquitted of a robbery, that person could never be tried for any other robbery in the future. Judges aren’t paid with Monopoly money, so wouldn’t give out that kind of a Get-Out-Of-Jail-Free Card.

In the same way, Ladri’s poisoning Priscop with wine was a completely separate and distinct criminal act than was her act of shooting Priscop. Yes, the name of the crime and the name of the victim would be the same in both trials, but the two acts were wholly distinct and she could be tried for each separately irrespective of the results the first trial.

In Ashe v. Swenson, the Supreme Court established a double jeopardy test that could apply here: In a subsequent trial, would the prosecution have to prove any of the same facts already proven in the first trial which resulted in an acquittal. If yes, then double jeopardy would bar the prosecution. If the prosecution did not have to relitigate any of the facts from the first trial, double jeopardy would not bar prosecution.

In Ladri’s second trial, the Crown would not have to introduce any evidence about her shooting Priscop. It could secure a conviction solely with the evidence of how she doctored the wine and poisoned Priscop.

Leastwise, that’s how it would work in the United States. I’m not completely familiar with how double jeopardy works in British law. But it would be pretty stupid of them to use an anal interpretation of double jeopardy that centered solely on the name of the crime charged and not the nature of the criminal acts being charged.

Some might say such a legal analysis was ill-advised. Others might say it was ill-ementary.

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The Law Is A Ass #462: I Parole My Eyes at the Huntress

Why was she there, in the first place?

Maria Bertinelli was convicted in Gotham City. So why was she in Blackgate Penitentiary? I thought all the criminals from Gotham City were sent to Arkham Asylum. Even the ones that clearly aren’t insane, such as The Penguin.

After her husband mob boss Frank Bertinelli was murdered, Maria Bertinelli took over his mob boss activities. Eventually Batgirl and the Birds of Prey caught Maria and, in Batgirl and the Birds of Prey #6, Bird of Prey member The Huntress turned Maria over to the police. Which probably made Huntress’s Christmas dinner with the family a little awkward, given that The Huntress was also Maria Bertinelli’s daughter, Helena.

Maria was convicted of “running a criminal enterprise” and sentenced to Blackgate Penitentiary for six years. Six years for a mob boss and reputed murderer? Fred Astaire was elephantine on his feet compared to this sentence. Now, after serving “a year and change” Maria’s up for parole. First a six-year sentence then parole eligibility after serving twenty percent of her sentence? Is the whole Gotham City penal system designed to give Batman job security?

Maria subpoenaed Helena to testify as a character witness in the parole hearing. That was something of a tricky proposition for Helena, considering that Maria, like an actress who wasn’t cast in the play, has no character.

But never let it be said that a heroine like Huntress passed up a civic obligation. After she got her subpoena, Helena went to the Gotham City Courthouse for her mother’s parole hearing.

Wait! Helena went where for the hearing?

Now, don’t get ahead of me. If you’re thinking Maria was convicted of felonies, so she wouldn’t be in city court, she’d be in a county court— good for you, you were paying attention to my old columns. But while you’re right that Maria’s parole hearing shouldn’t have been in the Gotham City Court, you’re right for the wrong reason. Maria’s parole hearing shouldn’t have been in Gotham City Court, because it shouldn’t have been in any court. You see in…

(Wait, Gotham City’s still in southern New Jersey, isn’t it? It didn’t move during Flashpoint or Rebirth or Crisis on Infinite Reboots did it?)

…in New Jersey, the court’s aren’t responsible for parole, the New Jersey State Parole Board is. Moreover, courts don’t hold hearings to determine whether an inmate should be granted a parole, the State Parole Board’s Division of Release does. Indeed, Division of Release’s web page says its, “primary duty… is to evaluate and assess each of New Jersey’s adult incarcerated inmates, and determine their eligibility and appropriateness for parole release.”

(Speaking of eligibility, under New Jersey law an inmate isn’t eligible for parole until the inmate has served one-third of his or her sentence. On a six-year sentence, one-third would be two years. So I was correct a “year and change” meant Maria was up for parole too early; unless “change” is slang for an entire year.)

The regulations for the Division of Release state that parole hearings are held before two members of the Parole Board, not before the judge who passed sentence. Maria’s hearing shouldn’t have been in Gotham City Court, it should have been in some parole hearing room in Blackgate. (See? Right for the wrong reason.)

Judge Watson denied Maria’s parole. No problem there. Maria didn’t seem repentant and wasn’t parole eligible anyway. I did have a problem with what the judge did next. He ruled that Maria be transferred to Arkham Asylum “to be treated for her criminal insanity.”

Judges can’t just do that, declare someone insane and order them into a civil commitment in an asylum. There has to be a hearing to determine the defendant’s mental status first.

This hearing would require expert witnesses to testify why they believed the defendant was mentally ill and needed to be committed. Judge Watson couldn’t commit Maria on his own motion and without any evidence by tacking it onto the end of a parole hearing. No judge would do something that blatantly wrong unless the judge was on the…

Oh, Judge Watson was on the take, wasn’t he? The super villain the Calculator needed to free Maria as part of his master plan and calculated it would be easier to break her out of Arkham than Blackgate. (Considering the frequency with which Arkham’s patients leave without leave, that wasn’t a bad calculation.) Calculator bribed Judge Watson to move Maria to Arkham, and by the end of the issue, Calculator had broken Maria out of Arkham.

So what Judge Watson did was wrong. No, not accepting the bribe. Well, yes, accepting the bribe was wrong, but Judge Watson’s bigger mistake was in moving Maria to Arkham in such a blatantly improper and illegal manner. When you’re on the take, you shouldn’t do what you were paid to do in a way that makes it obvious that you were paid to do it. It tends to lead to messy questions. And smart aleck columns.

This brings us back to my original question, why was Maria in Blackgate in the first place? If the story needed her to be in Arkham, why didn’t Judge Watson just do what every other judge in Gotham does, send her to Arkham with all the other criminals? Then Maria would already have been in Arkham and none of us would have had to read that whole silly parole hearing scene.

Unless… Hey, do you suppose Judge Watson was looking out for me, because he knew I’d been needing a column topic right about now?

Green Arrow #33 (2016) cover by Mike Grell
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The Law is a Ass #461: Green Arrow’s Witness Complication Program

I needed a quickie.

I meant, to get back into the swim of things after a couple of out-of-town trips, many stints of babysitting the grandkids (including one in which my wife and I stayed in their house for several days while their parents were on an out-of-town trip), and one brief, mild fling with COVID-19 kept me from writing columns for the past several months, I needed a column I could write quickly. Green Arrow #33 (2017) fit the bill perfectly.

It came out half a decade ago. That’s longer than the half-life of my memory. Meaning, I don’t remember it well enough to write a detailed recap. That should help speed things up.
Actually, to start this recap I have to go back even farther. Back to Green Arrow #2 (2016) when Green Arrow was fighting the Ninth Circle, a global bank which loans out money to criminals so they can do things like build secret bases in extinct volcanoes, buy piranhas by the Costco load or launch satellites with goyim space lasers. (Hey, the Ninth Circle is evil, you think it would have problems funding anti-Semites?) Meanwhile in the same issue, Oliver (Green Arrow) Queen’s secretary, Wendy Poole, died.

Only she didn’t. Die, that is. She came back. No, not in the typical the-dead-comes-back-to-life comic book cliché kind of way. She came back in the, the-bad-guys-kidnap-her-make-it-look-like-she’s-dead-and-frame-the-hero-for-her-murder comic book cliché kind of way. So Oliver Queen was arrested for Wendy Poole’s murder.

Oliver Queen posted bail. Than skipped bail, leaving town so that Green Arrow could travel all over the country teaming up with other members of the Justice League to regain their trust and take out the local Ninth Circle franchises on the other heroes’ home towns.

This I didn’t understand. Green Arrow has to regain the JLA’s trust? The JLA wouldn’t believe Green Arrow had been framed and would think he had turned murderer? Who on the JLA hasn’t been framed for a murder by some criminal? Hell, several of them probably had it happen to them earlier that same week.

Anyway, after DC published enough issues of Green Arrow traveling around the country to fill out a respectable trade paperback collection, Ollie returned to Seattle. Where he still faced trial for whacking Wendy.

Which brings us up to where we started Green Arrow #33 (2017) because that’s the issue where Kate Spencer, Ollie’s lawyer, learned that Wendy Poole was actually alive. And for the first time in her representation of Oliver Queen, Kate saw some hope. I wasn’t a high-priced defense attorney full of them fancy tricks you see on TV, but even I, a lowly public defender, know you can’t prosecute someone for murder when the supposed victim is alive and appears in court.

There was only one flaw in Kate’s plan. Wendy, who is living with her father, was traumatized by her experience. Father told Kate that he and Wendy couldn’t help Ollie, because whoever took her will “come after her if they know she’s still alive.” If they know? How could they not know? Haven’t they seen she was missing? Even Barney Fife checked Mayberry’s holding cells from time to time.

Kate went to Ollie, I assume to give him the good news and have him help convince his secretary to come forward. Instead, Ollie also forbade Kate from revealing that Wendy was alive to get him out of the predicament. “She’s gone through hell because of me.” Such nobility. It endeared Ollie to the reader but ticked off his lawyer no end. Kate stomped off think Ollie had won the noble sheesh prize.

Is that how it would work? If Ollie told Kate that she couldn’t call Wendy as a witness, couldn’t Kate call her anyway? No. And here comes maybe the quickest legal analysis I’ve ever done in the history of this column.

Lawyers are supposed to represent their clients in the manner in which their clients want to be represented. Unless the client wants the lawyer to do something that’s against the law, like put on perjured testimony or shoot the eyewitness between the “I” and the “do,” lawyers are ethically bound to represent their clients the way the clients want that representation to go.

If a lawyer wants to put on an insanity defense but the client says no, insanity cannot be presented. If the lawyer wants to call the not-really-dead murder victim to the stand to prove the client didn’t kill the victim and the client says no, it’s no. That’s the way it is. Sometimes the attorneys who don’t represent themselves have fools for clients.

So what happened to Ollie? Did he go to trial and get convicted of murder because of his nobility? No. After all, this was issue 33 of a Green Arrow series that lasted 50 issues. It would have been kind of hard to have the series go that long if the main character was convicted of murder in issue #34 and spent the next 15 issues in the slammer.

How did Ollie not get convicted? I don’t know. I told you at the beginning of this column that I didn’t remember all the details of this story line. Do you think my memory has gotten better after several more paragraphs? Law schools have a phrase lawyers can employ in cross-examination, “Is your memory like a fine wine? Does it improve with age?” In my case, “My memory does not get better with age,” is a fine whine.

Michael Davis: Don’s A Friend

Don is a friend.

I wrote most of this some time ago but, as with about 20 other articles, told my editors not to run it until a suitable time of my choosing.

The first date I had for this was Christmas. I was going to London at Don’s invitation, but circumstances changed that. I was a bit bummed because Neil Gaiman and I would have hooked up and seen his play together. Rich Johnson had promised to take me to this private club he said I would enjoy. I wasn’t too keen on that until I googled the club. It wasn’t a brothel or a Satan worshiping club. If I told you the name, you’d have second thoughts too.

I then decided the day to run this would be on Father’s Day. Last week I changed my mind, so it’s running today.

I met my friend Don because of a favor. Don wanted to get Comic-Con tickets for some young family members. So, a mutual friend called me. Once I secured the tickets, I told the mutual friend where they could be picked up.

Don called me personally to thank me and asked if there was anything he could do for me. I thought that was nice but told him it wasn’t necessary. I meant that. I’m not a fan of the ‘you wash my back; I’ll wash yours’ way of doing things.

Fast forward, Don and I become friends. I’m at his LA home, and I’m drawn to a painting on the wall. I’m blown away by this work of art. I ask Don if the offer is still open to do something for me. Don says, “Anything.”

“Can I have this painting?” I ask. “Sure. It’s yours!” he answers. Then he realizes the painting I’m talking about.

“Sorry

, that one you can’t have.” He says. Before I can go into my stick about keeping your word and how devastated I am, Don says, “My father painted that.”

I don’t know how long Don talked about his dad; it could have been 15 minutes or 12 hours; however long, it wasn’t long enough.

His father was a remarkable man

, and hearing Don talk was like hearing a voiceover to a Ken Burns documentary. What struck me wasn’t just Don’s love and respect for his dad but the pride he took in being his father’s son.

I’ve never known my biological father. I thought my stepdad was my real dad. On Christmas Day

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, I found out he was not. My aunt got mad at him and told me he wasn’t my father. I was 15, just old enough to know that’s gonna hurt more as you get older. It did because I idolized my stepdad.

Listening to Don talk about his dad got me thinking again.

“So, no painting? How about you put in a good word and have your dad adopt me?” Don laughed and said, you can ask him yourself when you meet him.”

Don called me last Friday; his dad passed away.

It seemed surreal.

A moment before Don called, a water pipe had broken in my building; water gushing everywhere; the maintenance crew had just arrived, asking me questions while I was on the phone, I could hardly think.

Turning my back on everything and everyone, I asked Don for his dad’s service details and told him I’d be there regardless of a minor crisis I had to deal with. The line was dead. That often happened when Don and I spoke, but I had no idea how long it had been that way this time.

It occurred to me the massive amount of things Don had to deal with. I left a message but would understand if he couldn’t return my call.

I never met Don’s dad but felt his presence through his son, so I know I will miss him.

Don, my condolences to you and your family, may your dad rest in peace and power.

Michael Davis: The Terrible Art of Walt Simonson, Neal Adams & Frank Miller

Simonson like Neal adams was great in his day, but clearly cuz of old age, the hands are probably much more worn and weary. Not like frank Miller who was ALWays a terrible artist, who just became unbearable

Walt Simonson posted the above tweet on both his Twitter and Facebook pages. 

I asked my old friend for the Twitter account of the writer. Walt, the cool mofo that he is, got a laugh out of the post but didn’t give me the info cause he’s a classy guy. 

I could not let that comment stand. I had to respond. Why? The kids are why. Back when lions, tigers, and bears were the spirit animals of America, that post wouldn’t have mattered. 

Those spirit animals have been replaced by sheep. Not the kind of sheep some men seek out when their eyesight is failing, and the palms of their hands look like furry mittens.  

The kind of sheep I’m talking about believe anything. A riot was an ordinary tourist day, bleach will heal you, and Obama killed Kennedy at 5 years old before returning to his home in Africa and job as a pimp. 

There’s no hope for those sheep, but maybe, just maybe, we can save their kids.

ComicMix is OK with outing the person who posted the tweet. I, like Walt, will take the high road and address said person as ‘Twit’ and proceed with my response as planned. 

Dear Twit,

I read your post calling Walt Simonson, Frank Miller, and Neal Adams ‘terrible artists.’ Walt and Neal, because of their age, and according to you Frank, always sucked. 

Those artists, along with Howard Chaykin, Bill Sienkiewicz, Denys Cowan, Jay Muth, Kent Williams, Dave McKean, and other ‘old’ creators are doing the best work of their careers NOW.

Their careers changed the game in comics and then some. 

You are welcome to give your opinion. However, you write as if your opinion was a fact. Er, nope. The facts are that the artists you think are terrible operate at a level so high you most likely can’t see it. Yes

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, that level is high, but it’s also clear. So clear Ray Charles, who was blind and is dead, could see it.

Each artist I mention is a friend. Howard and I butt heads every ten years or so, but his work is always on good terms with me. 

Speaking of Mr. Chaykin…

If you’re reading this, Howard, I owe you an apology. 

I reacted to words attributed to you. I didn’t take my own advice, which was to reach out and see if there was a problem or if you even said it. I’ve written a zillion articles on character assignation through hearsay.

It’s a dick hater move. 

I was a dick but never a hater, so once again, my apologies. 

Now back to Twit.

That aside to Howard gave me pause to think. Perhaps Twit, I owe you an apology also. I’ve done what you did. 

I said a famous aging artist, “Really sucked.” 

I said this at an exhibit that was a retrospective of his entire career. This guy was big time. His early work I loved. His early drawings were so realistic, almost like a photo. As he got older, he obviously stopped using reference and drew from his head. His storytelling was all over the place. 

His inked stuff was pretty good but didn’t do much of that as he aged. His color work looked like it was painted in one color. By the end of the exhibit, I hated this guy’s art. So

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, me being me, when asked what I thought of his work, said, “His early stuff was cool, I liked the ink stuff but everything else, “really sucked.’ 

The place was packed, and everyone who heard me began laughing. I felt pretty good until my cousin, who took me to the exhibition, explained people were laughing at me, not with me. “He still sucks,” I said.

“Grow up,” he said.

Twit, Once again, an aside has given me pause to think. Nope, no apology. I found out soon enough how wrong I was about the artist. His name was Picasso

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, and I did need to grow up. I was 11. 

Simonson and company are the Picassos of the comics industry, Twit. 

Grow up. 

THE LAW IS A ASS

The Law Is A Ass #460: Those “For Life” Sentences Are Nonsense

THE LAW IS A ASS #449: I SIC A POINT OF LAW ON ISAAC

I was wrong.

Last column, I wrote about the first five minutes of the “Pilot” episode of For Life in which we learned that Aaron Wallace was framed, unjustly convicted of being a drug kingpin, then, while still serving life sentence, became a licensed attorney in New York who practiced from prison. I explained how that would have worked. It wouldn’t.

I figured the show couldn’t possibly make another mistake until after its first act break. I was wrong. As I continued watching

, I learned it had made another mistake in those first five minutes. Then yet another in its sixth.

Aaron had filed a new trial motion on behalf of Jose Rodriguez. Six years earlier, Jose was dating Molly Davison, a 15-year-old girl from a “good family.” In shows like this that’s code for she was white and privileged. Molly’s parents didn’t approve of the relationship. Ultimately, Jose broke up with Molly.

She kept calling him. After Jose turned 18, Molly called and said if he came over one last time, she’d be alright. He went. They had sex. Jose fell asleep. When he woke up he found a suicide note from Molly in the bedroom and found Molly in the living room, overdosed on drugs she had purchased from Freddy Dawkins.

At Jose’s trial, Molly testified she never wrote the suicide note, which had disappeared. Freddy testified Jose, not Molly, bought the drugs. Jose was convicted of attempted murder, for supplying the drugs that almost killed Molly, and statutory rape, because, as the show put it, “in the state of New York, [sex between] an 18-year-old and a 15-year-old is considered statutory rape.”

Except, it isn’t.

New York is one of several states that has what’s commonly called a “Romeo and Juliet” exception to its statutory rape law. That’s not something people who are barred created for people who quote the Bard. It’s an exception that applies to sex acts between teenagers so that consensual sex between people who are between 15 and 21 isn’t a felony. At best it’s a misdemeanor. Sometimes it isn’t even a crime at all.

The statutory rape laws in New York

, found in Article 130 of the New York Penal Laws, require a defendant to be older than 21, if his or her partner is between the ages of 15 and 17 for the crime to be statutory rape. As Jose was 18 and Molly was 15, Jose didn’t commit statutory rape.

The crime that comes closest to applying to sex between an 18-year-old and a 15-year-old is NYPL § 130.55, sexual abuse in the third degree. It’s a misdemeanor, not a felony. And it has an affirmative defense built into it that applies if the defendant is less than five years older than his or her partner and said partner is older than 14. Molly was 15. Even under the new math 15 is older than 14. As Jose was only three years older than Molly, the affirmative defense should have kept Jose from being convicted of even this crime.

But he was convicted, because he had to be convicted for the story to work. After all, who ever heard a lawyer arguing that a client who wasn’t convicted of anything should get a new trial?

Jose was also convicted of attempted murder. Let’s go back to the trial to see how Aaron got Jose out from under that conviction.

In the new trial motion, Aaron argued Freddy had changed his account and now said Molly purchased the drugs. At some point, off camera, the court granted the motion. Now we didn’t see either Aaron’s motion or his argument in favor of the motion, still I can state with some degree of confidence that the trial court would not have granted it. See, later in the episode, Aaron talked to Freddy Dawkins in prison about how he was going to testify. Which means Aaron didn’t have Freddy’s testimony locked down and wasn’t sure how he’d testify.

A new trial motion based on changed testimony would have to have some evidentiary supplement attached to it to satisfy the court that the witness was actually going to offer different testimony. Say a sworn affidavit from Freddy detailing what his new testimony would be.

No judge would grant a motion for a new trial, possibly ending the defendant’s conviction and hefty sentence, because defense counsel supposed a witness was going to change his testimony. You can’t end a sentence with a supposition.

After Jose testified in the new trial, Aaron announced he intended to call Freddy Dawkins and the police officer on the scene who saw Molly’s suicide note. (Wait, Jose’s first lawyer knew about this police officer and didn’t call him in Jose’s original trial? First, said attorney didn’t argue the Romeo and Juliet exception, then failed to put on a key exculpatory witness. Just how bad was this attorney on a scale of zero to absolute zero?)

That’s when assistant district attorney Dez O’Reilly went to work. He exerted pressure on Freddy, and Freddy recanted his earlier recantation. Ah the old recant the recantation trick. Both on TV and in real life recantations of recantations have more frequency than a short wave radio. Dez also arranged for the bus transporting Aaron and Jose from the lock-up to the courtroom to reroute and deliver them last instead of first. By the time they got to court, the police officer who was to testify was gone. He was working an undercover case and that two hour morning slot was his only window to testify.

Okay

, we didn’t see Dez doing these things, so we don’t know he did them. But from the smirk he had on his face, we know he did them.

The next thing we knew, Aaron and Jose were back in prison. As there was more trial later in the episode, the court must have continued it. I don’t know why didn’t the judge go on with the trial after Aaron learned he had no witnesses? It was only 11:00 a.m., plenty of time for something.

Even if the judge pulled a Perry Mason – noting that it was nearing the noon hour then recessing until 2:00, so Perry could use that recess to set up his last ditch legal trick/miracle – the trial should have resumed later that day. Here, and for no reason, the judge must have continued the case to another day, because Aaron needed more than a two-hour lunch break for his last ditch legal trick/miracle.

After all, it takes time to fabricate evidence.

Aaron called his wife on his hidden cell phone and had her purchase a box of the same note paper Molly used for her suicide note. While Aaron’s wife was traveling to the prison to deliver the paper, Aaron wrote an “anonymous” letter to himself on a prison typewriter. Then Aaron got the note paper his wife brought him and took it, along with a note that Molly sent Jose while he was in prison and Jose himself, to an inmate who was a forger. Jose had memorized Molly’s suicide note. He dictated it to the forger, who forged Molly’s handwriting on a duplicate suicide note. Next Aaron went to someone in the prison kitchen who treated the note with chemicals and heat to age it and remove the fingerprints. (Or something like that, the show wasn’t real clear what was going on here.) Then Aaron went back to his wife in visitation and gave her the fabricated suicide note and the cover letter. She mailed them back to Aaron. That Aaron could organize all this on such short notice was amazing. That the letter actually got back to him in time was incredible. That he got away with this all stretches credulity farther than Plastic Man in a Cat’s Cradle.

The cover letter Aaron wrote purported to be from a anonymous police officer who had responded to Molly’s overdose and said he found the suicide note at the scene and kept it for some reason even though he had been instructed to destroy it, then, years later, sent it to Aaron because of a guilty conscience. At Aaron’s request, the court called Molly for the express purpose of corroborating whether the note included in the latter was the actual suicide note she wrote.

Aaron had Molly read the note in open court. Then he asked her “Are those the words you wrote to Jose the day you overdosed?” Molly confirmed that those were the words she wrote but said the note she was holding was not the note she wrote.

Aaron asked Molly where the original note was. She said her parents destroyed the note than coerced her to lie about Jose so that she wouldn’t be arrested for buying drugs.

And in the very next scene, Jose was released and cleared and everything was good.

Except, of course, for the fact that Molly was prosecuted for perjury and her parents prosecuted for suborning perjury and destroying evidence.

No, that probably didn’t happen. Remember the Davisons were a “good family.” So they probably didn’t suffer any consequences more severe than those that would have been leveled by a young Bob Barker.

But what about Aaron? Didn’t he face disciplinary actions for knowingly presenting falsified evidence to the court? I’d like to say I don’t know. Even though I didn’t watch any more episodes of For Life, because of my research for these columns, I know what happened in them. If you’re good, I’ll tell you about them later.

If you’re really good, I won’t.

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Brian Augustyn: Night and Day

For Nadine, Carrie, and Allie.

Mark Waid suggested we express our condolences over Brian’s passing and tell you what he meant to us. Brian meant far more to me than I could ever express with words, but I’ll try.

I have a mentor program, Bad Boy Studios. Alisande Morales (Ali), Brian’s former assistant is an alumnus.

When I learned Ali was working with Brian, I told him she was excellent; he said Ali was the best thing to come out of Bad Boy Studios, and that’s saying something.

So I told him an Ali story.

Every person from the studio knows the story I’m talking about; I only have to say one word. Phone.

I never told Ali what Brian said. I asked Brian not to say anything to her

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, I promised Ali I would not share that story with anyone outside of the studio. He asked me not to mention his comment. She had just begun working there; that’s not the thing you tell a newbie. 

I don’t break promises to anyone. This wasn’t just anyone. This was Brian.

This was Brian, who spent an hour on the phone with me in the middle of his day. That doesn’t seem like a big deal on the face of it, a DC editor spending an hour on the phone with an artist doing a book for DC.

Except I wasn’t doing a book for DC anymore, I was fired. Losing that book was horrific for me, but I now understand it could have been much worse. I didn’t know then; I’ve only known that I suffered from bipolar depression for a few years.

Looking back

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, it seems Brian talked to me for an hour as if he knew something about me I didn’t. He said Mike Gold was working to put me back on the book and to have faith. “Having faith” is unquestionably the last thing that I believe when despondent.

I believed Brian.

That night I was able to sleep with no destructive thoughts or dreams. The next day, Mike Gold called with the news I was back on the book. Again I couldn’t sleep, but this time from excitement and happiness.

 After being in a bad place for the last few years

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, I’m in a good place now. I promised myself I would stop writing about painful subjects to protect that good place.

I kept that promise to myself until a former student passed. After writing about him, I pledged to avoid painful topics again. This was an oath made to myself I broke; that could be a lot of therapy hours.

Not telling his family the good Brian did for me was never an option.

I won’t need therapy, like hundreds if not thousands of people; I’ll miss him, but I’ll be fine.

Besides, this wasn’t just anyone I was writing about; this was Brian. 

My deepest condolences to his family, friends, and fans for your loss.

May Brian rest in peace and power.

Brian Augustyn 1954-2022

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http://my-home-page.com

The Law Is A Ass #459: THE SHOW WASN’T ACCURATE “FOR LIFE” OR MONEY

Nicholas Pinnock on "For Life" -  ABC7 Chicago

Five minutes. Couldn’t ABC’s big new legal drama For Life go just five lousy minutes without a major legal mistake? Is that too much to ask?

Yes

, ah say yes, it is.

Sorry about the bad Foghorn Leghorn impersonation. I had to do a bad Foghorn Leghorn impersonation, because I can’t do a good Foghorn Leghorn impersonation. And, I had to say, “Yes,” twice, as there were two major legal mistakes in those first five minutes.

In those first five minutes, a flashback introduced us to Aaron Wallace, a black nightclub owner in New York City who was framed for drug possession. He was convicted of a crime that neither he nor a one-armed man committed and sentenced to prison.

The show then jumped nine years to the present. Aaron was now an attorney arguing a motion for a new trial in his first case. And arguing it against Assistant District Attorney Dez O’Reilly, the same ADA who prosecuted Aaron and who didn’t know his opposing counsel was Aaron Wallace until he saw Aaron in the courtroom.

Then the show quantum leaped back into another flashback that revealed Aaron hasn’t been released from prison. He is appearing as a lawyer even though he’s still serving a life sentence.

Then the show, which was jumping around more than a five-year-old in a bouncy castle, came back to the present for a conversation between O’Reilly and his boss District Attorney Glen Maskins to explain how Aaron became a licensed attorney.

Aaron worked for the prison’s paralegal association helping other inmates with their internal prison legal matters. This got him unlimited access to the prison law library and computers, which he used to attend then graduate from first an online college and then an online law school. Aaron took the Vermont bar, because it was the only state that allowed someone with a degree from an unaccredited law school to take it’s bar. Then Aaron successfully applied to have his Vermont law license accepted reciprocally in New York.

Which brings us up to the five minute and two seconds mark of the show. Okay, I lied, it was five minutes and two seconds. So sue me, maybe you can get Aaron to take the case.

What’s wrong with that picture? Let’s start with ADA O’Reilly having no idea who his opposing counsel was until he saw Aaron in the courtroom.

Legal pleadings have a service clause, a paragraph in which the attorney who filed the pleading swears a copy of the pleading was served upon opposing counsel. It also includes the attorney’s address so opposing counsel can serve their responsive pleading. Aaron’s name and address, Bellmore prison, was clearly on display for O’Reilly to see. Unless O’Reilly didn’t read the motion before appearing in court to argue it, he should have seen Aaron’s name and address.

The show tried to explain why he didn’t see Aaron’s name. The ADA originally assigned to the new trial motion hearing went to the hospital when his wife had gone into labor

, so the motion was only given to O’Reilly thirty minutes earlier. But that excuse, like a napkin in a deli, won’t cut the mustard.

If Dez O’Reilly was going to go argue against a motion he only received thirty minutes earlier, the first thing he’d do is read the motion. After all, he would need to see what arguments the motion made so he’d know what counter arguments to make. And when he read the motion, he would have seen Aaron’s name and address. Reading the motion is the first thing I would have done. But what do I know? I was merely a practicing attorney for 28 years, I didn’t play one on TV.

But that mistake, like a side of tots, is small potatoes. We’ve got bigger spuds to fry: The fact that Aaron is a licensed attorney in New York.

Ex-cons can become licensed attorneys and practice law. Isaac Wright, Jr., the real-life person whose story inspired For Life, did. While he was serving his sentence, Mr. Wright, with the help of a licensed attorney, got all the charges against him dismissed for prosecutorial misconduct. After he was released, Wright graduated college, then law school, and became an attorney. It took him more than a decade, but he did it.

Aaron took a shortcut. He managed to become a licensed attorney without first getting the charges against him dismissed. And while he was still in prison.

Which makes it unlikely that he would been admitted to the Vermont bar. Like all state bars, Vermont’s bar requires an applicant meet its character and fitness requirements. I’m sure those requirements would put a big old biggest frowny emoji on an application from a convicted drug offender who was serving a life sentence in another state and denied it. Most states don’t want people becoming criminals until after they’ve been admitted to the bar and have learned how to cover their tracks. It’s much less embarrassing that way.

The show told us a former state senator in New York vouched for Aaron to get him past the character and fitness requirements in New York. Maybe that former senator did grease the wheels in New York. But how much pull would he have had with the Vermont bar? About as much as a teddy bear in a taffy factory.

And what about travel expenses? Vermont would have had to pay to transport Aaron from a prison in New York to some Vermont courtroom every time he had a case to argue. That also should have caused Vermont to deny the application, as the other way would be to practicality and fiscal responsibility what balsa wood is to fighter jets.

But even if Aaron was admitted to the Vermont bar

, he still wouldn’t have been able to get New York to grant him reciprocal admittance its bar. When states have a reciprocity agreement, members in good standing of the bar in one state can be admitted to the bar of another state without having to take the new state’s bar exam. New York and Vermont do have a reciprocity agreement, so Aaron could have had New York accept his Vermont license reciprocally. Provided he met the requirements of Rule 520.10 of New York’s rules for admission to the bar.

By now you should know me well enough that I shouldn’t have to spell out those requirements for you to know Aaron didn’t meet them. But like a jock strap that’s on backward, I’ll be anal retentive and tell you. Under Rule 520.10 New York will grant reciprocity to an applicant who has been practicing law in a reciprocating state, “for five of the preceding seven years.”

There is simply no way that Aaron could have been practicing law in Vermont for five years. He’d only been in prison for nine years, and, considering he was a full-time prisoner taking on-line courses in his spare time, it probably took him most of those nine years to complete his studies. Even if he was able to take a heavy caseload to accelerate his studies, he probably needed three years to complete the four-year college program then another two years to finish the three-year law curriculum. That’s five years. If he was working at optimum speed. Which means he could only have been practicing in Vermont for four years, not enough years for him to qualify for reciprocity in New York. So, no, Aaron probably wasn’t an attorney in Vermont and definitely wasn’t one in New York.

That’s what was wrong with For Life in just the first five minutes. Did the show get better from there? Well, I can honestly tell you that there were no more legal problems with the episode that I can write about.

In this column.

Next column… Well next column, I hope I can at least get us past the first commercial break.

Michael Davis: I Want My Props!

Michael Davis: I Want My Props!

Dear whoever decides who should be recognized with awards and whatnot;

My name is Michael Davis. You’re no doubt heard of me. Depending on who you ask, you will get many different stories.

I’m sure they are all entertaining, like the one where  I killed a cat for looking at me or was caught in bed with an underage nanny goat while high on Elmer’s Glue. Stories vary but are pretty much all bullshit. I’ve said for decades that…shit, never mind. What’s the point of me saying anything that proves it’s all bullshit? People like to believe rumors, and I’m a bit too old to give a fish anymore.

Since no one is talking about my contributions to the industry (except when I was thought to be dead), I’ve decided that I would.

I am the only comic book creator with a comic book series in the American school system taught as a curriculum.

So incredible was that feat, The Gordon Parks Academy named their auditorium after me. I’m pretty sure no comic book creator has gotten that honor either.

It’s called The Action Files, and it was so successful the original hardcover series now goes for over $700 bucks on Amazon, if you can find someone willing to sell their copies.

Oh, and it’s been selling for over 25 years. So this ‘recent trend’ of comics in the schools an educational comics blah blah blah can thank me.

I started it.

I was not only there first; I’m still the only comic book creator with a comic book series in the American school system taught as a curriculum.

So, it’s only fair that an achievement like that is given some props, right?

OR…answer the question of why is an achievement of such magnitude acknowledged by academia but not my peers?

Is it the underage nanny goat while high on Elmer’s Glue rumor?

The truth is that goat was over 18.

Please feel free to start with my Pulitzer throw in my Nobel Peace Prize. Wait, those are not industry awards or honors. But I bet if I won those, it would look silly if my industry ignored my accomplishments, would it not?

Did I mention I’m the only comic book creator with a comic book series taught as a curriculum in the American school system or the auditorium with my name on it in the school named after one of the greatest thinkers of the 20th Century?

Most likely, you’re unaware of the Action Files, which is the reason I’ve been left out of all those reindeer games.

Well, the more you know…

The Law Is A Ass #458: The Human Torch Wants Just The Tax, Ma’am

The Law Is A Ass #458: The Human Torch Wants Just The Tax, Ma’am

I’m not an insurance company executive. I don’t even play one on TV. But if I were – or a probate judge or some similarly situated professional – and someone came to me to tell me that a Marvel hero, say Reed Richards, had died, my initial reaction would be, “Reed Richards? It’s an even-numbered week. That mean’s it’s Ben Grimm’s turn to die.”

In 2015, forces beyond their control killed the Fantastic Four. No, not the cosmic forces behind the latest version of Secret Wars. That was just the story where the FF died, not the forces that killed them. Said forces were higher ups at Marvel who decided if Fox wouldn’t give the film rights for the Fantastic Four back to Marvel Studios

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, then Marvel Comics shouldn’t publish a Fantastic Four comic and give free publicity to a competing studio’s movies. So at the end of the Secret Wars story line, Reed (Mr. Fantastic) Richards, Sue (Invisible Woman) Richards, and their children all died.

No, of course they didn’t die. But everyone including Johnny (The Human Torch) Storm and Ben (The Thing) Grimm thought they had died. Someone even had them declared legally dead, because in Uncanny Avengers (2017) #28, a lawyer named Harris Hutchley told Johnny that he had inherited Reed’s $5,196,353,518.41 estate.

Which, like a sleep over camp bed, is pure bunk.

Reed and Sue lived, and Johnny lives, in New York City, so that means the laws of New York would cover Reed’s estate. New York Estates, Powers and Trusts Law § 2-1.7 reads, “A person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed, in any action or proceeding involving any property of such person, contractual or property rights contingent upon his or her death or the administration of his or her estate, to have died three years after the date such unexplained absence commenced, or on such earlier date as clear and convincing evidence establishes is the most probable date of death.”

Which means, in simpler terms and with far fewer commas, that after three years of Reed and Sue being missing, a court could declare them dead.

Reed and Sue’s “death” happened in Uncanny Avengers (2015) #4, which came out in January of 2016. Johnny was informed he had inherited the estate in Uncanny Avengers (2017) #28, which came out in October of 2017. Now I may have been bad at math, but I wasn’t so bad that I can’t count to one and one-half years. I was even good enough to know that’s only half of the time the statute requires before a declaration of death should be made. And that’s one and one-half years of our real-world time. One and one-half of our years is probably just a weekend in Marvel time; maybe a Labor Day weekend. But far less time than the statute requires.

In the interests of full disclosure, I must add that the statute also says, “The fact that such person was exposed to a specific peril of death may be a sufficient basis for determining at any time after such exposure that he or she died less than three years after the date his or her absence commenced.” Surely said paragraph would apply to people who tick off Dr. Doom, Annihilus, or even Paste-Pot Pete on a weekly basis. No, I think not.

As I said earlier in this column, if I were an insurance executive or a probate judge in the Marvel Universe and someone came to me to say some Marvel super hero had disappeared and should be declared legally dead, I’d say, “Not so fast.” Let’s face it, “dead” heroes in the Marvel Universe come back so often you’d think Jesus was offering a Lazarus special at a Costco kiosk. Reed Richards himself died in Fantastic Four (1993) #381 only to return in Fantastic Four (1995) #407. And let’s not forget the original “Heroes Reborn” incident. (Yes, let’s all forget that, please. —Ed.)

The point being, legal officials in the Marvel Universe have seen people die and return to life so often, I don’t think any of them would be willing to have a Marvel hero declared legally dead just because someone asked. There’s a lot of paperwork and court hearings involved in declaring a person legally dead. There’s even more of that involved in declaring a person not-dead. After all, a judge who distributed probate assets for some Marvel character who was presumed dead would have to figure out how to get those assets back to the original owner after that character invariably came back in a few issues. At the very least, I think the legal profession would wait the full three years before declaring a Marvel character dead, not a year and a half.

Even if Reed had been declared legally dead, I seriously doubt that his estate, which had to be long and complicated, would have been completely probated in only a year and one-half. It took almost that long for my mother’s estate to be probated, and it was about as complicated as a glass of water.

But in this story, Reed and Sue were declared legally dead faster than Quicksilver can play the Minute Waltz and Johnny inherited. Only to learn that he had to pay something called the “business and opportunity tax.”

The what now?

I’ve heard of the income tax. I’ve heard of the sales tax. I’ve even heard of the marza tax. But I’ve never heard of the business and opportunity tax.

Neither has Google or Wikipedia.

That doesn’t mean that it doesn’t exist. It only means that my quick internet searches didn’t find any taxes with that name. Not in the USA or any of its component states. Moreover

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, the concept of Johnny owing any tax on the money he inherited is dubious at best. After all, if death isn’t certain in the Marvel Universe, why should taxes be?

While some states have what’s called an inheritance tax that require the legatee to pay taxes on what was inherited, New York and the federal government don’t have an inheritance tax. They have an estate tax. With an estate tax, the estate, not the legatee, pays the tax out of the estate proceeds. That means Reed’s estate, not Johnny, would have paid the taxes then Johnny would have inherited whatever was left after the estate tax was paid tax free.

Oh, Johnny will pay income taxes on his personal income from Reed’s various patents and holdings. But those will be due weeks or months down the road

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, not the same day he inherited.

Earlier I said I didn’t know what a business and opportunity tax was. If any of you know what it is, let me know. Not just because, even at this late stage in my life, I like learning new things, but for an even better reason. If the business and opportunity tax actually exists, it’s just one more reason for me to be happy I’m retired.