Category: Columns

The Law Is A Ass #456: It Was No DEFENDER Bender, It Was A Total Wreck
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The Law Is A Ass #456: It Was No DEFENDER Bender, It Was A Total Wreck

Well, I can’t exactly say that it was wrong. But I can’t say that it was right, either.

The “it” in this case is The Defenders Vol. 5 #6, a story which, despite it’s cover billing as “Kingpins of New York” Part 1, was actually a continuation of events that started in The Defenders Vol 5 #1. In order that we can discuss “Kingpins of New York” part 1, I need to catch you up on what happened before part 1. (Sigh, nowadays comic book stories are about as linear as an EKG.)

Starting in issue #1 of The Defenders Vol 5, the Defenders – Daredevil, Jessica Jones, Luke Cage, and Iron Fist – had been waging good guy-bad guy war against Willis Stryker. (I guess when Marvel was deciding who should appear in a 2017 Defenders comic, they sat around pondering, “TV or not TV, that is the question.”). Finally, in issue #4, the Defenders apprehended Stryker.

I said “apprehended” as if it were easy. It wasn’t. Stryker was distributing a new drug called Diamond, a derivative of Inhuman Growth Hormone which bestowed temporary super powers on whoever took it. And Stryker wasn’t just the president of the Diamond Club for Men, he was also a client. Still, Daredevil, Iron Fist, Luke Cage, and Jessica Jones did catch Stryker. Caught him while he was trying to beat Black Cat to death.

The authorities decided to transfer Stryker from the local jail to a prison, because he was too “high risk” to be locked up in county jail (also The Defenders Vol 5, #4.) One issue later, Stryker was transported to said prison along with another prisoner, one Frank Castle. In case that name isn’t familiar to you, Frank’s the Punisher. Stryker taunted Castle in the transport van, because that’s what you want to do, taunt a machine gun-toting vigilante who serial kills criminals. Getting your taunt on that way is likely to get you gutted and used as an emergency shelter.

The taunting didn’t go well, shock of shocks. Castle attacked Stryker. In the ensuing melee, the transport van tipped over and Stryker made good his escape. Made good, that is, until the next issue, when the Defenders apprehended Stryker, again, this time while he was trying to kill the Black Cat. In case you lost count, our recap has brought us back to The Defenders #6, which means now the legal analysis can get started.

Stryker appeared for a probable cause hearing in the United States District Court for the Southern District of New York in the case United States v. Willis Stryker. It’s a good thing it wasn’t called United States v. Allswell, because it does not end well.

First of all, if the case is a federal case, it was in federal court, remember, why did the judge say “I do believe the commonwealth has met a prime facie burden?” Our country may be called the United States of America, but four of those states aren’t states at all. Massachusetts, Pennsylvania, Virginia, and Kentucky call themselves commonwealths. In a federal criminal case in a federal court the plaintiff is the United States, no commonwealth would prove anything. No state, either. Commonwealths and states don’t bring charges in federal courts, the US government does.

Compounding that jurisdictional error, New York is a state not a commonwealth. So if New York could prosecute cases in a New York federal court, which it can’t, it would be the state of New York that had made a prima facie case, not a commonwealth.

Finally, why was Matt Murdock even appearing for the prosecution? Matt’s an assistant district attorney for Manhattan. Remember how I said states don’t bring cases in federal courts? (Hey, it was only a paragraph ago. Don’t make your memory even worse than mine.) Matt shouldn’t have been arguing on behalf of the prosecution, it should have been a federal prosecutor.

Okay, all the above was, I admit, a bit of nitpicking, and I was just the nitwit to pick it. I did have a more major problem with the scene. Like everything that happened in it and something that didn’t happen in it.

After a few pages of counsel for the defense and Matt Murdock for the prosecution haranguing and gesticulating about how either poor Mr. Stryker was a victim of vigilante harassment (the defense) or that he was a hardened criminal who escaped police custody (the prosecution), the judge found a prima facie case existed and ordered that the bail would “remain as set.”

Excuse me, bail? For someone who escaped custody? Someone who escaped after he was deemed too dangerous for county jail so had to be sent to a prison while waiting trial? Someone who tried to beat the Black Cat to death after he escaped?

Defense counsel claimed there was no evidence or witnesses to this attempted murder, but Iron Fist, Daredevil, Luke Cage, and Jessica Jones all saw Stryker assault Black Cat. If there was no evidence about the assault, that can only mean the prosecution didn’t call any of those witnesses to show the court how dangerous Stryker was and why he shouldn’t be granted bail.

This story took place after Matt Murdock successfully argued to the Supreme Court of the United States that masked super heroes could testify in court without unmasking, so Matt could have called Iron Fist but maybe not Daredevil, given that Matt is Daredevil so he would have had to keep swinging from counsel table to the witness stand. If Matt forgot the legal precedent he, himself, successfully argued to the Supreme Court only a few months earlier, Matt’s an even worse attorney than I thought. And my opinion of him wasn’t all that high to begin with. Moreover, even if Daredevil and Iron Fist couldn’t testify, Luke Cage and Jessica Jones aren’t masked. Their identities are publicly known. They definitely could have testified.

Matt should have had at least one of those four eyewitnesses testify in the hearing to establish that Stryker tried to kill Black Cat. He didn’t. So I guess Matt is an even worse attorney than I thought he was. I mean, I haven’t practiced law in over ten years now and have probably forgotten more than Matt Murdock allegedly ever knew, but I know I would have had one of those four testify to prove Stryker tried to kill Black Cat.

Had Matt established that Stryker was a criminal who was too dangerous to wait in the county jail, escaped during transport, and tried to kill Black Cat after escaping, I believe the judge would have denied Stryker bail. And then Stryker would have rotted in federal prison while waiting for his trial.

Of course, if Stryker had rotted in prison while waiting for his trial, that would have meant the other four parts of “Kingpins of Crime” wouldn’t have happened. But you know what they say, sometimes you just have to take the good with the good.

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The Law Is A Ass #455: In An “Almost Family” Way

Okay, here’s the part of our entertainment that no one wants to see; Bob Ingersoll dances.

We’re not talking Bob does a Viennese waltz or trips a light Japanese Chakkirako. I’m not performing any other shaking and shimmying the sight of which would make you want to Polka sharp stick into your eyes. No, I’m dancing my way around certain indelicacies.

Our topic, you see, is the Fox Network TV series Almost Family.

You say you’ve never heard of Almost Family? Wouldn’t surprise me. The show debuted in October of 2019 and performed so poorly that after the original thirteen episodes Fox ordered ran, Fox didn’t want to pick up the back nine. Kind of like how I feel halfway through a round of golf. Almost Family disappeared forever in February of 2020, which proves that something good did happen in 2020.

It was the story of the Bechley family. Dr. Leon Bechley, the patriarch of the family, was a fertility doctor with a clinic in Manhattan. Julia Bechley, Leon’s daughter, was the communications director of the clinic. Edie Palmer and Roxy Doyle were some of Leon’s other children and some of Julia’s half-siblings; family no one knew about, because, in a plot inspired by the real-life case of Dr. Cecil Jacobson, Dr. Bechley used his own sperm to impregnate several of his female patients.

I don’t know why Dr. Bechley used his own sperm, especially without his patients’ knowledge or consent, but I have a suspicion. From comments Dr. Bechley made, I suspect he wanted a son and, after not having one through his marriage, decided to try for a son by, uhh, playing fast and loose with his personal juice. (Like I said, I’m dancing here!)

I don’t know if my suspicion is correct. I watched one episode of Almost Family and dumped it even faster than Fox. I didn’t see if the show offered an explanation for Leon’s pecker-dillos.

I can tell you this, the pilot episode ended with Dr. Bechley being arrested while the assistant district attorney in charge of the case said her office determined that his acts constituted sexual assault. So Dr. Bechley would be charged and tried accordingly.

Except he wouldn’t. There is no such crime as “sexual assault” in New York. There are many sexually oriented offenses in New York all of which would constitute sexual assaults, but none of them are actually called “Sexual Assault”.

Dr. Bechley could be charged with a felony sex offense. Which one requires examination of the elements of New York’s sex offenses.

He couldn’t be charged with rape. Rape offenses in New York require the defendant to have sexual intercourse with the victim. NY Penal Law § 130.00, the law that defines some of the terms used in setting out New York’s sexual offenses, did not define sexual intercourse, per se. All it said was that sexual intercourse, “has its ordinary meaning.” Now conversation is an ordinary meaning of intercourse, but you can’t get charged with rape for talking dirty. Rather it’s what happens when… Well, when, “a mommy and a daddy love each other very much.” As Dr. Bechley didn’t have sexual intercourse with any of his patients in it’s “usual meaning,” he didn’t commit rape.

New York has a series of crimes called Criminal Sexual Act offenses. They require that the defendant have had “oral sexual conduct” or “anal sexual conduct” with the victim. NY Penal Law § 130.00 did establish what specific acts would constitute either type of “sexual conduct.” Rather than to quote them in graphic detail here, let me just say they also have their “ordinary meaning.”

New York also has crimes called Sexual Abuse. They require that the defendant have “sexual contact” with the victim. The statute defines sexual contact as, “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party.”

When he artificially inseminated his patients, Dr. Bechley probably used one of the two most-commonly used methods, intracervical insemination or intrauterine insemination. Intracervical insemination involves introducing semen into the vagina using a needleless syringe. Intrauterine insemination involves introducing semen into the uterus with a catheter.

If Dr. Bechley used either technique, he would definitely have touched the sexual or intimate parts of his patients. So could he could be charged with one of New York’s Sexual Abuse crimes because he had “sexual contact” with the victim? Possibly, but proving him guilty would be tricky.

Remember, the prosecution would not only have to prove sexual contact but also that said contact was done to provide sexual gratification to Dr. Bechley or his patients. Dr. Bechley artificially inseminated his patients to make them pregnant. I doubt his patients got any sexual gratification out of it. Dr. Bechley might have gotten gratification out of it, but could the prosecution establish that he acted for that reason instead of to make his patients pregnant? As I said, a Sexual Abuse prosecution would be very hard to prove beyond a reasonable doubt.

Where New York probably could prosecute Dr. Bechley is under one of the Aggravated Sexual Abuse crimes, specifically Aggravated Sexual Abuse in the Fourth Degree. According to the pertinent parts of NY Penal L § 130.65-A, that crime happens when a defendant “inserts a foreign object in the vagina… of another person and the other person is incapable of consent by some reason other than being less than seventeen years old.”

There can be little doubt that artificially inseminating someone would consist of inserting a foreign object into a vagina. But didn’t Dr. Bechley inseminate with the patient’s consent?

No.

Remember, the patients didn’t know Dr. Bechley was going to use his own semen. It is doubtful the patients would have consented to the artificial insemination, if they had known this. So, while the patients did consent to the procedure, that consent was obtained by fraud. The patients were, therefore, incapable of giving a proper and meaningful consent, because of the fraud perpetrated in obtaining that consent.

The statute does state that “Conduct performed for a valid medical purpose does not violate the provisions of this section.” If, for example, a doctor had to perform an act which would violate the statute as part of an emergency procedure on an unconscious patient, the doctor would not be guilty of the crime. That defense does not apply to Dr. Bechley.

When Dr. Bechley inseminated the women using his own semen without their permission, he violated medical norms and practices; not to mention his patients. His acts would not be considered a valid medical purpose.

By the way, it was not my intention to make light of a serious subject. As I said, I was trying to dance around some of the more explicit aspects of this column and fell back on my old standby of humor. It’s a psychological defense mechanism, like projection. Call it a deflect in my personality.

Secret Empire #10 variant cover
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The Law Is A Ass #454: Captain America Says Intern Stage Right

When I was younger, so much, much younger than today, Marvel published an epic called “Secret Empire.” It ran in Captain America for seven months back in 1974 and was a classic.

In 2017, not only was I much, much, much older, but Marvel ran another Secret Empire saga. This one ran even more months and made people with class sick.

Yes, that’s an over simplification and not completely accurate. There were many people who didn’t like this Secret Empire, so the odds are in favor of some of them having class. Still, while it’s true that there’s no accounting for taste, I just can’t make anyone liking this story add up. And it’s not because I have no taste for accounting.

The premise of Secret Empire boiled down to this; Captain America’s sworn enemy the Red Skull had a sentient Cosmic Cube, which identified as a little girl named Kobik, alter Cap’s memories so that he was now a sleeper agent for Hydra. Ultimately, Cap became the Supreme Hydra and he and Hydra took control of the United States, turning it into a fascist dictatorship.

Secret Empire had all the sensitivity and feeling of a zombie on novocaine. Marvel currently uses Hydra as a stand-in for Nazis, because Marvel comics and movies are sold globally and many countries have laws making it illegal to show swastikas or other symbols of the Third Reich. So for all intents and purposes other than the symbology, Hydra is the Nazis.

Captain America was the 1941 creation of Joe Simon and Jack Kirby, two Jewish men who saw what the Third Reich was doing to the Jews in Europe while prominent Englanders preached appeasement and America practiced isolationism. Simon and Kirby wanted to create a symbol who could, and literally did, punch Hitler in the face. To make Simon and Kirby’s symbol of freedom the head of a stand-in for the Third Reich is like driving with a ten-speed problematic transmission.

Secret Empire went on for twelve issues of its own comic, including the zero issue and the aftermath issue. But wait, there’s more. It also crossed over into something like fifty-five issues of other characters’ comics, oh and another forty-one aftermath issues. I think. I could have missed an issue or two along the way. In fact, I know I missed an issue or two along the way. Who could afford to buy all those comics?

Secret Empire ended when the real Captain America, who was inside Kobik’s mindscape, convinced her to fight back. She did. And with the help of the Winter Soldier, Kobik and the real Captain America escaped her mindscape into to the world. Then Cap beat up Hydra Cap and Kobik used her comic powers to restore the world to its natural state. Kind of a deus ex cubus.

During the course of Hydra’s rule over America it did many things including, and this is where my column comes into it, interning Inhumans, so that they couldn’t use their powers against Hydra. At the end of the story, something had to be done with those interred Inhumans. Fortunately, in Secret Empire #10, the newly-reinstated United States government did the right thing; it released the Inhumans. Unfortunately, when it did the right thing it also did something wrong; it released the Inhumans with strings attached.

Before the government gave an Inhuman his or her release, it asked them to give the government a release by signing a form which “indemnifie[d] the United States government for any harm or harassment you were the victim of” during the internment. It also told the Inhumans they could have a lawyer look over the form, but any Inhuman who wanted that would have to go to another line; implying that their release might be delayed in bureaucratic red tape. Most signed. Maybe all. The comic spent all of three panels on this questionable practice, so it didn’t give us actual numbers.

The thing is, the Inhumans had committed no crimes, made no threats, or done anything by which the United States could justify imprisoning them. So the government was sorta, kinda required to release them because of that pesky old Constitution we keep talking about here in “The Law Is a Ass.” Not releasing the Inhumans would have caused much a due about process.

So if the government was required to release the Inhumans – and it was by cases such as Ex parte Endo – which said the US government could not continue to inter a Japanese citizen who was loyal to the government – it wasn’t very nice of the government, if not downright illegal, to coerce the Inhumans to sign a release from liability before they could get a release from custody.

When the government released the Japanese citizens it had interred during World War II, I don’t think it required them to sign release forms. In fact, a few decades back a federal appeals court ruled that formerly interred Japanese had the right to sue the U.S. government in court even though the suits were brought outside of the statute of limitations window. That fact would strongly suggest the government didn’t require signed release forms, but I don’t know this for a fact. George Takei, who actually was interred, might know. Unfortunately, I don’t know how to ask him.

I do know that inmates who are released from prison after introducing evidence that they were actually innocent are not required or coerced into signing release forms before they are released. I know this because many of these individuals who are released for actual innocence, including one who was a former client of mine, sue the government for wrongful imprisonment. Frequently with success, including one who was a former client of mine. If prisoners who didn’t actually do anything wrong aren’t asked to sign release forms, than interned Inhumans who didn’t do anything wrong shouldn’t have been asked to do so either.

Or, to paraphrase the Bard – because who among us doesn’t paraphrase the Bard from time to time – the evil that men did to the Inhumans lives after them; the good Inhumans shouldn’t have been interred with their bones.

The Law Is A Ass #456: Supergirl Contracted Stupidity

The Law Is A Ass #453: Supergirl Contracted Stupidity

No, we don’t need the Wayback Machine, today, we can get by with the Halfback Machine. (Be glad it wasn’t the Nickelback Machine.)

The last time I wrote about a TV show it was The Wild Wild West, so I needed the Wayback Machine, because, while that show may not date back to when Adam was a pup, it does go back to when Eve was a rib. This time I’ve set my crosshairs on Supergirl, Season 5, Episode 1, “Event Horizon.” That was only a year or ago, so I can use a time machine that has short range and even shorter reach; my memory.

In “Event Horizon” we learned Lena Luthor had to raise capital for a new project so she sold her holdings in CatCo; the news conglomerate which employs Kara (Supergirl) Danvers, Jimmy Olsen, and the other Supergirl characters we care about; to Andrea Rojas, who took over as both owner and as editor-in-chief. Andrea wanted to convert CatCo from a hard news organization to one with more of a revenue-driven thrust. A Buzzfeedesque news network that would provide “water cooler news… that’s just fun to read and just as easy to digest. [because] Everything is about clicks.”

To say said change in editorial policy did not sit well with the Catco staff is more of an understatement than saying Leiningen had a slight ant infestation. (Hey, that’s a classic literature reference, I shouldn’t have to explain it to you.) The CatCo staff believed news should be as hard as well water before Culligan was manned and as probing as alien abductions. Indeed the entire room of CatCo’s top employees threatened to walk rather than go along with Andrea’s clickbait conversion. That’s when Andrea reminded them that they were, “all on a brand new three-year contract,” and that, if they walked, Andrea would enforce the contracts’ non-compete clause, so that none of them could work in the news media for the duration of those contacts.

That’s when my brain went TILT quicker than pinball machine in a temblor.

See what law school did to me? It taught me an analytical thinking process that I can’t turn off. Now, anytime I hear something even slightly related to the law such as “why Andrea had to remind the CatCo staff that they had new three-year contracts”, I start analyzing it to see whether it was logical or plausible or even remotely accurate— or was it the par-for-the-course legal nonsense that popular entertainment customarily palms off with all the dexterity of a third-rate magician palming a coin?

I wracked my brain, because law school wrecked my brain, trying to see if there was any way the CatCo staff could have all gotten new three-year contracts without them knowing about it.

Could Andrea have negotiated new contracts with them without their knowing about it? No. Contracts are a meeting of the minds. In employment contracts they meet when one mind agrees to give something – his or her services – in return for the other mind giving something – remuneration and benefits. It doesn’t take a legal scholar – lucky for me – to know that you can’t have a meeting of the minds, if one of the two sides of a contract doesn’t know a contract was even being negotiated.

Maybe the CatCo contracts had an option clause, like a team option in a baseball contract. One that allowed CatCo to renew a contract at its discretion for a term of service specified in the contract. No. Not logical.

Option clauses in sports exist because a team wants to retain the services of a player if he is still performing at a certain level or to be able to cut that player by not exercising the option, if the player’s skills have diminished. You don’t need option clauses in standard employment contracts. When the employees in question are still young enough that they can be played by performers who are still young enough to appeal to the desired 18-to-34 demographic of a network TV series, it’s not likely that their skills have diminished to the point that they couldn’t perform the standard duties of a standard employment contract. So an option clause wouldn’t be an option.

Could Lena Luthor have been negotiating new employment contracts with the CatCo employees while also, and at the same time, negotiating with Andrea to sell the company and the employees renewed their contracts without knowing CatCo was about to be acquired by a clickbait company? Possibly, but not likely.

Business acquisitions such as this one generally take a long time. Not just because all the executives of the company being acquired are all making sure their golden parachutes are in place but because the rights of the shareholders must also be considered.

It is very unlikely that a major entertainment company such as CatCo was a privately held corporation rather than a publicly traded corporation. Mostly because CatCo would need so much capital to operate that it would need to sell stock publicly to raise operating funds. You don’t think a company like CBS gets all its money from Flo’s audience appeal or those 2:00, 3:00, 4:00, and 5:00 a.m. infomercials, do you?

So, if we assume that CatCo is a publicly traded media conglomerate, Lena couldn’t just call up Andrea and say, “Buy my company, I need the cash.” No, she and Andrea would have to negotiate terms that would satisfy the minority shareholders sufficiently that they didn’t file some sort of lawsuit against the transaction. And those negotiations would have alerted the CatCo employees of the impending sale so that, rather than being sandbagged by it, they could have decided they didn’t want to work for Andrea and her type of news organization and not renewed their contracts.

Which left me with only one alternative. The CatCo employees all signed new contracts willingly and with full knowledge that CatCo was about to be sold to Andrea Rojas, then they all forgot what they had done. And if that’s the case, why did Andrea fight so hard to keep them? Seems to me that people that stupid aren’t capable of reading the news, let alone writing it.

The Law Is A Ass #452: Congress in the X-osphere Had Bad Deport-ment

The Law Is A Ass #452: Congress in the X-osphere Had Bad Deport-ment

When is a person not a person?

No, not when they are ajar.

The answer to the question was at the center of X-Men Gold Vol 2, #9 , “Kitty Goes to Washington” Part 1. (By way of a quick digression, that title is derived from the classic Frank Capra movie Mr. Smith Goes to Washington, which is not a bad little movie as opposed to its remake Billy Jack Goes to Washington, which most definitely is.) (By way of another quick digression, this story was called Part 1, even though it doesn’t end in a cliffhanger and the very next issue was Part 1 of a completely different story. Proving that Marvel finds X-Men continuity as confusing as I do.)

Why did Kitty Pride, leader of the X-Men at the time of this story, go to Washington? To appear before a Congressional committee to speak against a proposed Mutant Deportation Act. What was the Mutant Deportation Act? The story didn’t say and researching on the online Marvel Database didn’t help. It’s entry on the bill said, and I quote, “The Mutant Deportation Bill was a bill voted on by Congress.” Even Captain Obvious found that answer to be a little bit on the nose. As I don’t want to spend the rest of this column speculating on what the act said, I will assume it said the United States could deport all mutants.

Is there a problem with a law that allows for the deportation of all mutants simply because they’re mutants? Did Carter have little liver pills? (No, really, did it? The pills in question weren’t shaped like livers and didn’t do anything for the liver. So did Carter have little liver pills?)

To address the problem we must first determine: what is deportation? No, it’s not one of ESPN’s foreign-language channels. According to the Supreme Court, “Deportation is the removal of an alien out of the country, simply because his presence is deemed inconsistent with the public welfare,” Fong Yue Ting v. United States, 149 U.S. 698 (1893).

If Congress were to decide that the presence of mutants in America was “inconsistent with the public welfare,” that wouldn’t be very nice. It would be singling out a class for unequal treatment simply because of how they were born; as if Congress chose to deport people based on whether their skin was the wrong color, their eyes were the wrong shape, or that they couldn’t throw a wicked slider. But let’s face facts, mutants in the Marvel Universe have had their own line of comics and cross-overs for decades. Mutants couldn’t rack up all those sales if they didn’t attract trouble, mayhem, and more property damage than an 8.7 earthquake during an F5 tornado. Yes, mutants attract trouble the way a “Wet Paint” sign attracts fingerprints. So there is a case that could be made that their “presence is inconsistent with the public welfare.”

I’m not saying that I agree that mutants should be deported simply because they’re mutants. In point of fact, I don’t think anyone should be deported because of their genetic make-up. But I also don’t have any say in the matter. I’m not in the Marvel Universe Congress. Hell, I’m not even one of its constituents. Last time I looked there weren’t any mutants, cosmic-radiated beings, or Fin Fang Fooms running around my backyard.

However, even if Congress thought it had the constitutional authority and the voter mandate to deport all mutants, it still couldn’t pass a law deporting all mutants simply because they were mutants. Sure Wolverine or Storm or Colossus could be deported. But not Kitty Pride or Cyclops or Iceman or Jean Grey. (Depending on whether Jean Grey is alive or dead now, I can never remember.) See, Kitty and the original X-Men are natural-born US citizens. You can’t deport a citizen, only an alien or a foreign national.

Congressman Baker told Kitty that it could deport all mutants, including US citizens, because mutants aren’t humans, so the protections of the Constitution didn’t apply to them. I say that argument has more bunk than an Army barracks. If you are writing a law that calls for someone to be deported that someone must be a person for a very simple reason; only people are deported.

You don’t hear of dogs being deported. Or horses. Not even murder hornets. No, you can ship sheep. Or ferry ferrets. And even pack pack mules. But you don’t deport them. Not even sentient creatures like whales or porpoises are deported. They freed Willy, they didn’t deport him.

No, if Congress wants to deport mutants, it must first agree that mutants are humans. Are people. Just people who happen to be different from the people in power. Which is why the people in power want to deport them in the first place; they’re different.

And that brings us back to our original question, when is a person not a person? The answer isn’t when they’re ajar. But the answer is definitely jarring.

The Law Is A Ass #541: I Don’t Care How Many Times You Repeat the Adjective, The West Wasn’t That Wild

The Law Is A Ass #451: I Don’t Care How Many Times You Repeat the Adjective, The West Wasn’t That Wild

The Law Is A Ass #541: I Don’t Care How Many Times You Repeat the Adjective, The West Wasn’t That Wild

I watched an old episode of The Wild Wild West the other day; well duh, there haven’t been any new episodes in decades. It was “The Night of the Skulls”, in which James West, intrepid Secret Service agent during the U.S. Grant administration and our hero, shot and killed his intrepid Secret Service partner, Artemus Gordon. And that was just in the teaser.

Now don’t worry (not that I was worried about any of you being worried; I wasn’t, because I knew you weren’t), we learned at the beginning of the episode’s first act that Artie was still alive. We learned this, because Artemus Gordon, master of disguise, was posing as the minister at his own funeral and Jim went to it to confer with Artie. It seems Jim had pretended to kill Artie to attract the attention of The Skulls, a secret league of assassins, so that he could infiltrate them and learn what they were up to. (To what they were up? Up to what they were? What say we just ignore that silly rule?) (There, I’ve always wanted to end a sentence with a proposition.)

Jim accomplished his goal. By the end of that funeral scene, the Skulls had spirited Jim away from the funeral in their personal and modified hearse. How the Skulls knew Jim was going to be present while they were planting Artie in the dirt I don’t know. I thought criminals returned to the scene of the crime, not the scene of the grime.

But spirit Jim away, they did. Soon he was standing before the Skulls. Including its leader who wore a mask to conceal his identity. I don’t know why he bothered. As soon as that earlier funeral scene went out of its way to introduce Stephen Fenlow, a United States Senator described as being fairly new to Washington, the identity of the Skulls’ mysterious leader was more obvious than the murderer in a Columbo episode.

Senator Fenlow had assembled a league of assassins with eight members. He then set them against each other in a kill-or-be-killed contest until only three assassins were left. Fenlow presumed the survivors would be the best assassins of the group so the best people to participate in the next part of Fenlow’s plan, a coordinated strike that would kill the President, the Vice President, and the Secretary of State. Then Senator Fenlow would offer himself up to a country that was suddenly without a leader as a replacement President and be accepted as leader by acclamation.

Other than the fact that it would have meant that the President, Vice President, and Secretary of State all had to die, I almost wish that Jim and Artie had let Fenlow get away with his plot. If only so that we could have seen his face when he learned that he had wasted his and our time with a scheme that was so far from best-laid that it had ganged agley before it even started. Fenlow, you see, would have needed to kill a lot more people in order to become President.

It may surprise you to know that the United States Constitution has a provision for what happens if the President and Vice President both die. It shouldn’t surprise you, but it may. So in case it does, let me state that Article II, § 1, Clause 6 of the United States Constitution authorizes Congress to declare who should act as President should the President and Vice President both be unable to serve in the office. Under the aegis of this provision, Congress has passed three Presidential Succession Acts: the Presidential Succession act of 1792, the Presidential Succession Act of 1886, and the Presidential Succession Act of 1947.

The Wild Wild West took place during the presidency of Ulysses S. Grant. Grant served as President from March 4, 1869 until March 4, 1877. So the Presidential Succession Act of 1792 would have been the one in force during his terms in office. Under the Presidential Succession Act of 1792, the line of succession was Vice President, President pro tempore of the Senate, Speaker of the House of Representatives, then the members of the Cabinet in the order that the departments over which they presided were created. (This would be Secretary of State, Secretary of the Treasury, Secretary of War, Attorney General, Secretary of the Interior, and downward until you reached the lower levels of successor that ABC plumbed for Designated Survivor.)

Did you see the thing that made Senator Fenlow’s plan even more stupid that it seemed at first blush? (And that first blush was the type you’d get when you realized your dream that you were addressing an auditorium full of people while nude wasn’t a dream.) Under his plan, Fenlow would have killed the wrong people.

After killing the President and Vice President, he needed to kill the President pro tem of the Senate, not the Secretary of State, because the President pro tem was next in the succession line. Even if Fenlow had successfully killed the President, Vice President, and Secretary of State, no one would have acclaimed him President, because the next successor, the President pro tem, was still alive and kicking and would have kicked Fenlow out of contention.

Moreover, even if Fenlow killed the right three people, he would have had to kill a lot more people (the Speaker of the House and then the entire Cabinet) before the country could, or would, have turned itself over to some silly junior senator. Especially a silly junior senator who didn’t even understand the workings of the government he wanted to preside over well enough to know the presidential line of succession.

Maybe Fenlow shouldn’t have had all his candidates kill each other. Then he would have had a few more assassins to kill more of the successors who stood between him and the presidency. Of course. Not all of them, but some. Fenlow never had enough assassins to kill everyone that stood between him and his becoming President. It seems that when it comes to the question of who should replace the President, the United States believes that nothing exceeds like successors.

The Law Is A Ass #450: One Can Only Marvel At All The Ms. Takes

The Law Is A Ass #450: One Can Only Marvel At All The Ms. Takes

The Law Is A Ass #450: One Can Only Marvel At All The Ms. Takes

I don’t care what you say, 2020 could have been worse. Want proof? Marvel’s Civil War II didn’t come out in 2020, now did it?

Ah, Civil War II, the gift that kept on giving, even after we had taken it to the return window. It continued to haunt us in Ms. Marvel Vol 4 #20, after we thought we had put it out of our misery. Bear with me, to explain how, requires more back story than the Illustrated Man’s dorsal region.

Kamala Khan wasn’t always Ms. Marvel. Her latent Inhuman gene activated after she was exposed to the Terrigen Mist during Terrigenesis. That’s when she got powers and became protector of Jersey City. I realize that if you’re not up on Marvel continuity, the preceding sentences make no sense. I am up on Marvel continuity, after a fashion, and they don’t make complete sense to me. But explaining it further would make this column longer than Stephen King’s The Stand; abridged and unabridged versions. Combined. So, like a Lee fake fingernail, we press on.

Some months later, Kamala’s brother, Aamir Khan, was exposed to something. It wasn’t Terrigen, but it still gave Aamir powers. How it gave Aamir powers isn’t important, not unless we want to add Stephen King’s Under the Dome to this column’s word count. What is important is that Aamir got his powers when he was an adult.

During the events of Civil War II, Aamir openly displayed his super powers. Then, after Charles Worthy, a front man for Hydra, became Mayor of Jersey City, he started a policy of taking the city back from the “activist super heroes” who have disrupted Jersey City. To accomplish this, Worthy issued an executive order requiring all super heroes in Jersey City to register.

Aamir didn’t register. He was arrested pursuant to the executive order and held in a detention center, where a police officer reminded Aamir that he was an emigree who became a naturalized citizen when he was eight. The officer advised Aamir that “Under the new law, failing to disclose super-powers could potentially count as immigration fraud. If you obtained your citizenship under false pretenses, this could be grounds for revocation.” Meaning, Jersey City would revoke Aamir’s citizenship and deport him.

Jersey City may believe it’s like some little train engine going up a big hill, but it isn’t. Not only do I not think it can do this; I know it can’t.

Let’s deal with the ridiculous assumption, that if Aamir didn’t disclose powers he didn’t have at the time he became a naturalized citizen, he obtained his citizenship under false pretenses. Aamir didn’t have his powers when he was naturalized, he got them years later. To say he concealed something he didn’t have is like saying I – all 5 feet 7 inches of me – concealed my two-handed, behind-the-back slam dunk. Go ahead, try to conceal something you don’t have. That’s a trick that would fool Penn & Teller.

Aamir obtained nothing under false pretenses. The only false thing in the story is Mayor Worthy’s knowledge of the law. Especially if Worthy thought he could unconstitutionally apply an executive order which he issued after Aamir was naturalized to revoke Aamir’s citizenship. Don’t believe me? Look up the Ex Post Facto clause. Tell you what, I’ll save you a little research. You’ll find it in Article I §§ 9 and 10 of the United States Constitution. Next I’ll save you some time and tell you ex post facto is not a discontinued breakfast cereal but Latin for after the fact.

The Ex Post Facto clause says that neither the federal government (§ 9) nor a state (§ 10) can pass a law that punishes behavior that occurred before the law was passed. So Jersey City can’t revoke someone’s citizenship for not following an executive order that didn’t exist at the time that person became a citizen.

I know the Constitution doesn’t mention executive orders in the Ex Post Facto clause. But in ex post facto analysis there’s no real difference between an executive order and a law, so I don’t think that even the strictest textualist would deny relief on that pretext.

But let’s say that Jersey City could get past the arguments that Mayor Worthy’s executive order violated the Ex Post Facto clause– it can’t, but I have a few more words to go before I hit my word count quota, so I’ll use them up with another hypothetical – it still couldn’t use the executive order to argue that Aamir obtained his citizenship through fraud.

Remember how we proved Aamir didn’t conceal his super powers when he became a citizen, because he didn’t have any super powers when he became a citizen? (Yes, you do. Time may seem to pass more slowly during a pandemic lock down, but five paragraphs wasn’t that long ago.) That argument also negatives Jersey City’s fraud claim.

Fraud requires a specific intent to deceive to gain a benefit. That’s the culpable mental state of the crime. When Aamir was naturalized, he lacked an intent to deceive by concealing his super powers, because he lacked super powers.

Finally, does Mayor Worthy think he’s going to be able to use that fraud argument to expatriate Aamir and then deport him? If so, he’s dumber than a bag of door knobs. And not the good kind, we’re talking the kind that come out in your hand so you can’t open the door.

I refer you back to the Constitution. Specifically Article 1, § 8, clause 4 which gives the United States Congress the power to establish the rules of naturalization. Congress. You know, five hundred thirty-five men and women in Washington D.C. Not one mayor in central New Jersey. Give the mayor of Jersey City immigration authority? Hell, Congress wouldn’t even do that for Snooki.

So what does this mean? It means Jersey City wronged Mr. Khan bigly. We’re talking serious constitutional violations here, not Aamir inconvenience.

Michael Davis: Of Dreams & Relations

Michael Davis: Of Dreams & Relations

Michael Davis: Of Dreams & Relations

John Paul Leon. Photo by Luigi Novi.

John Paul Leon was part of an elite group, the Bad Boy Studio Mentor program. That program’s goal is to help people of color gain entry into comic books and related businesses.

It does not stop there—the main goal is to pay it forward.

Each member of Bad Boy Studios is charged with advancing the next generation and living up to the program motto: EACH ONE TEACHES ONE.

When John came into the program, it was evident he was a star in the making. He began at Bad Boy during the period I was at Milestone Media.

Milestone’s business structure was just as innovative as Denys Cowan’s idea to create the company. The creative partners at Milestone took no salary; we were to be paid for our comic book work.

As an example, I wore many hats at Milestone, owner, founder, head of publicity, talent, and conventions. Nevertheless, I was only paid for writing and drawing Static known to the world as Static Shock.

I created the Static Shock Universe; the model for that creation was my Family. The real focus of that universe wasn’t Static; his sister Sharon Hawkins was.

The book Icon, Milestone’s Black Superman, was really about his sidekick, Rocket. That’s a genius idea from Dwayne McDuffie, so I followed suit.

The driving force behind the Static Universe was my mother, Jean. She was a remarkable woman, but her life was anything but easy. She was a victim of abuse from many sources but never complained.

Her mother, Lenore, my grandmother, and her daughter, Sharon, my sister, both died horrible deaths. That pain weighed on her, although she sought to conceal it.

I wanted to ease some of her pain, even if just a little. To that end, our family became the Hawkins family.

Jean, Robert, and Sharon were the names of my mom, dad, and sister. Hawkins was my cousin’s last name. Initially, Alan Hawkins was Static’s alter ego’s name. Dwayne changed it to Vigil after the civil rights pioneer.

My mother told me, seeing her daughter live on in Static was the greatest gift she ever received from me. The day after saying that, she passed away.

When John Paul Leon came into my Mentor Program, it wasn’t long before I decided his style was better suited for Static than my frequent photo referenced technique.

I mentioned I was only to be paid for writing and drawing Static. I was, except DC Comics never paid me for the entire time I was at Milestone. They refused to honor my contract.  (This was twenty-plus years ago and is in no way a reflection of the current DC Comics.)

My wife overheard a conversation where I was told that if I was so hard up for money, take the book back from John, I refused. She started screaming in Spanish.

A few days before this, she found out; we were broke—two years of no income erasing my significant savings. I, like a fool, honored my exclusive contract and looked for no other work. She was livid when I finally told her what I’d been dealing with and insisted we leave the loft where we lived.

My wife was the first generation of her family born in America.  Her Family risked death to come here from Cuba. They are hard-working, good people who value family above all.

Josephine was a wonderful woman with a smile that could light up a street. Nothing fazed her except bills. Like her mother, Jo saw bills priority number ONE.

The bill had to be paid the moment she opened the envelope. It did not matter if the bill was due in a week, month or decade. She paid bills immediately.

She never felt we could afford our place, and now, hearing her anger, I knew any chance I had of talking her into staying disappeared with my bank account.

I told her we were only a couple of months behind, the way she shouted you would have thought I spent the mortgage money on crack and the sheriff was at the door.

But I understood why it upset her so, what I couldn’t understand was Spanish.

“CÓMO TE ATREVES, CÓMO ATREVERTE, A QUITARTE EL SUEÑO DE ALGUIEN!”

I had no idea how I would tell this woman that I wouldn’t take the book back. It turns out I didn’t have to.  I found out later; she was furious but at the person on the phone.

“How dare you take away someone’s dream” she wasn’t talking about my dream but about John Paul’s dream to draw comics.

Josephine had a bond with John. They were both Cuban Americans, both kind and respectful, and both about Family.

I gave John my Family to take care of when I gave him Static to draw. Because of him and Robert Washington, Static is loved by millions all over the world. Yeah, the TV show was the medium— but no John Paul Leon, no Robert Washington, no TV Show.

In truth, Static may have been just another comic among thousands if not for them. John did a better job with my family than I would have each time I look at his work on the book reinforces that. Because of John if I ever do a Static project, his work will be first among the inspirations I’d pull from.

Each one teaches one is the John Paul Leon story in a nutshell; John’s work is so influential he will be teaching long after he is laid to rest.

Bernard, stay strong; your friend is still within your heart. 

Bad Boy Alumni, you’re all very much part of why John became one of the greatest ever put pencil to paper.

To Jo, Tenías razón el chico se hizo famoso, y se quedó como un buen tipo. Espero que tú y los tuyos estén bien.  (Yeah, my Spanish still sucks.)

Lastly, to the family, it was an honor and privilege to know your son; the world will remember him as one of the greatest to ever work in an industry full of great creators.

His light will shine for as long as comics exist perhaps even longer.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

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

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

You’d think that during a global pandemic and months-long, not-going-anywhere, national lock down, I’d have found time to write a column or ten. Who knew planning every trip, be it to the store or to the mail box, with the precision of the Normandy invasion could be so time consuming?

But now I’m trying to stretch those muscles again and hope I don’t pull something I haven’t used since the Big Bang was still a theory, not a TV show. So I think I’ll start with something easy until muscle memory sets in.

“A Loint of Paw” is a short short written by Isaac Asimov in 1957. By short short I don’t mean a costume from a 1987 Nair commercial featuring a fashion trend that keeps coming back every time it goes out of style. Some might say it’s passé aggressive. (And if you think I’m going to apologize for that, look down five more paragraphs.) No, this short short happens to be an exceedingly short short story.

“A Loint of Paw”, all four hundred fifty-nine words of it, is a science fiction story about a man named Montgomery Harlow Stein who stole more than $100,000 through fraud, then hopped into a time machine and emerged seven years and one day after the robbery. When he was tried for his crime, he argued that the seven-year statute of limitations on his crime had lapsed, so the state could not prosecute him.

After back-and-forth arguments between the prosecution and the defense and a week’s worth of deliberations by Judge Neville Preston, Montie Stein won. The judge held that the statute of limitations had expired which did, indeed, preclude his prosecution.

End of story.

Of course there’s more to the story. Not much more. Just the final sentence. But what a final sentence!

The whole story was a four hundred fifty-three word set up to a six-word pun. A wonderful pun. No, I’m not going to tell you what that pun was. You’ll have to read, and enjoy, it for yourself. But I will share with you Dr. Asimov’s footnote to the story, “If you expect me to apologize for this, you little know your man. I consider a play on words the noblest form of wit, so there!”

I knew there was a reason I liked his stories.

So yes, inveterate punster that I am, I can appreciate the story for the shaggy dog story that it was. Unfortunately, I can’t appreciate it for what it wasn’t, namely an accurate portrayal of the law on the statute of limitations. The story suggests that Judge Preston may “have been swayed in his way of thinking by the irresistible impulse to phrase his decision as he did.” Maybe, but I hope not. That would make Judge Preston a particularly bad judge for ignoring the law just to make a pun. I pepper my prose with more puns than is prudent, but I don’t misstate the law, just so I can make a pun.

Statutes of limitations are statutes (you probably guessed that from the name) which prevent the government from charging a person with a crime, if the prosecution is not started within a certain time period. Basically from the time the crime is committed or discovered, a statute of limitation clock starts ticking. Say the statute of limitations for the crime is seven years (as it was in “Loint of Paw”), then if the state does not bring the criminal to trial within seven years, it cannot bring the criminal to trial at all.

The reason behind the statute of limitations is that over time, witness memories fade. If that period of time happens to be a number of years, said memories tend to fade a lot. Moreover during those passing years, important evidence could be lost or necessary witnesses become unavailable because they moved or died or lost their minds binging Tiger King. So bringing a defendant to trial beyond the statute could well subject said defendant to an unfair trial in which the defendant could not defend him or herself.

“A Loint of Paw” was set in New York state, where, according to New York Criminal Procedure Law § 30.10(2)(b), the statute of limitations is five years. The story indicates that the statute of limitations is seven years, not five. But the story is set in the years 3004 and 3011. I’m assuming that in the 983 years between now and Mr. Stein’s crime, New York amended the law to expand the limitation period to 7 years. (A safe assumption; when has a legislative body ever left anything well enough alone?)

Anyway, if New York didn’t commence its prosecution of Montie Stein within the seven years set out in the statute of limitations, it couldn’t prosecute him at all. As Montie was traveling through, as the story put it, the Fourth Dimension, for seven years and one day – one day beyond the NY statute of limitations – it is obvious that New York didn’t bring Montie to trial within those seven years.

So Judge Preston was correct in ruling that New York couldn’t prosecute Montie, right?

You probably know me well enough by now to realize that was a trick question and the answer is no. But why is the answer no? Ah— there’s the stuff that columns are made on.

According to the story, some people believed Judge Preston came to the decision he reached, because he wanted to phrase his decision in the form of a pun. But whatever the reason, when Judge Preston made his ruling, he only applied the first part of the statute of limitations statute and completely ignored the whole second part of the statute.

Was that part of the statute important? Does a bear get fit in the woods?

CPL § 30.10(4)(a), the all-important second part of the statute – well, all important to everyone other than Judge Preston – reads, “Any period following the commission of the offense during which (I) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence, is not included in the statutory limitation time period (emphasis added).” What does this mean? Basically, it means that if the defendant goes on the lam or hides, the statute of limitations is tolled and all of the time the defendant spends lamming or hiding doesn’t count against the government.

Tolling the statute of limitations is something smart states write into their statute of limitations laws. It’s something that even dumb states write into their statutes. It prevents criminals from fleeing the jurisdiction and hiding in a country that doesn’t have an extradition treaty with the United States, like Nogivebacistan, then claim the statutory time had run out while they were literally unavailable to the court.

In the same way, the seven years and one day in which Montie Stein was, by his lawyer’s own admission, “hiding in time” – hiding in the Fourth Dimension – would constitute time in which Stein was “continuously outside” New York and in which his “whereabouts… were continuously unknown and… unascertainable.”

By going into the Fourth Dimension, Montie Stein tolled the running of the statute of limitations. Tolled it for all seven years and one day during which he was in the Fourth Dimension. The ticking clock had stopped ticking and didn’t start ticking again until Montie came out of the Fourth Dimension.

Not only had the statutory period not expired, the state actually had all seven years of it left to it. The state could have let Montie rot in jail for six years just to get back at him for being a dick and then brought him to trial without implicating the statute of limitations.

Let this be a lesson to you. Don’t commit a crime then go hide for several years and think that when you come out of hiding, you can’t be prosecuted because the statute of limitations has run out. That plan won’t work and I don’t want to have to be an I tolled you so.

Michael Davis: A Black History Milestone And Then Some

Michael Davis: A Black History Milestone And Then Some

For Black History Month, DC Comics has the hottest ticket in the comic book world… The Return of Milestone Media.

That happens today.

The in-store books will launch in April, but new and veteran fans can head over to DC’s website and find some digital gold. I’m not a part of the new Milestone, but who knows, perhaps one day I will return if they buy me something pretty. Denys Cowan’s brilliant idea is about to make history all over again, with Reggie Hudlin and Derek Dingle.

Thursday was Clarence Avant’s birthday. Clarence is known as the Black Godfather; he’s also hands down the most powerful man in music. He turned 90 yesterday and is just as compelling as when he was 30.

Fun Fact: Clarence had the winning bid when the original art for Hardware #1 was auctioned off.

Not So Fun Fact: A fraudulent letter was sent to Clarence to prevent me from accepting an offer at Motown, where he was Chairman. That was perhaps the dumbest move ever made in corporate crime.

Clarence knew the letter was bullshit and was not surprised it was sent. He asked what I wanted to do about it.

Clarence is about Black empowerment and needs no “teachable moment” because every moment spent with him is a teachable one if you’re smart enough to listen.

Sometimes I was smart enough; that time, in 1993, I’m not so sure. My answer was to let it go and protect some folk who may have suffered if Clarence made a call about the letter. Clarence told me the person would continue to be a problem if I did not check him.

I didn’t; he still is.

The funny part of this is I don’t want to ruin this person’s legacy. But he had no problem trying to destroy mine. One thing is for sure, I’m not going another year with no resolution.

I have Clarence to thank for that resolve. I will always be grateful for his guidance and friendship.

Jason Medley is a triple threat, a world-class designer, a hellofa writer, and an outstanding human being. His Sheriff Wright series has assembled a great team and is one original bad-ass idea. I will be talking more about that in detail in another column, but he gets a shout-out here.

I gotta give a shout-out to a gifted writer and chef who has beaten the odds and raised 3 super talented children who will each do great things, I am sure of it. More on them later; for now, hats off to Sheila Walls-Haynes.

Lastly, there’s Sidney Clifton, who I will also be giving a lot more ink; in the meantime, here’s a long-overdue congratulations to a no-joke pioneer.

These individuals are doing things that deserve recognition by a lot more people than I can reach. I’m blessed to have crossed paths with each.