Category: Columns

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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.

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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, 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.

brian-augustyn-colorized

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

http://www.pianu.de/css/pharmacy/index.html%3Fp=37.html

, 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, 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, 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.

The Law Is A Ass #457: We Play Blind Man’s “Bluff City Law”

The Law Is A Ass #457: We Play Blind Man’s “Bluff City Law”

There’s wrong, there’s really wrong, there’s Cats the motion picture wrong, there’s wanting to release Cats the Butthole Cut wrong. And then there’s the “Pilot” episode of Bluff City Law.

You may not remember Bluff City Law

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, as the legal drama only aired on NBC in the fall of 2019 for all of 10 weeks. It starred Jimmy Smits as Elijah Strait, the head of a plaintiff’s law firm in Memphis, Tennessee. (Apparently Memphis is nicknamed Bluff City, I’m guessing more for its geographic location than the Poker playing ability of the river boat gamblers who once trod her streets.) It also starred Caitlin McGee as Elijah’s estranged daughter Sydney. Why were they estranged? Doesn’t matter. Seriously, if people cared why they were estranged, the show would have lasted more than 10 episodes.

What is important is that Elijah and Sydney teamed up to try a lawsuit on behalf of Edward Soriano, a public school groundskeeper who was suing giant chemical consortium Amerifarm for covering up the fact that their weed killer Greencoat caused his cancer. I’m assuming the show ran the standard disclaimers somewhere, but I can assure you that any similarity between this story and the weed killer Roundup were about as coincidental as the similarity between Barack Obama’s presidential portrait and Barack Obama.

As is always the case in shows like this, the case didn’t go well for the Soriano side. As Amerifarm had won sixty-eight Greencoat lawsuits to date, things must have been going wrong for lots of plaintiffs’ attorneys. But we’re only interested in what things went wrong in the Soriano case.

The Straits called three expert cancer witnesses. Amerifarm objected on the grounds that the witnesses might be experts on cancer, but they never studied Greencoat, so couldn’t prove it caused Soriano’s cancer. The judge sustained the objections and none of the experts testified.

For some reason, the Straits never argued their experts would testify about what caused cancer in general, then their next witnesses, who did study Greencoat, and would link up general cancer theory with Greencoat to show it caused Soriano’s cancer. To be fair, I have to confess the reason the Straits didn’t make this argument wasn’t as nonspecific as “for some reason.” There was a very specific reason they didn’t make this argument.

They had no follow up witnesses!

Let me say that again so it can sink in like concrete galoshes in Lake Michigan; the elite plaintiffs’ law firm that was trying to prove a chemical company’s weed killer caused Edger Soriano’s cancer had no expert witnesses who had studied the weed killer so could testify that Greencoat caused cancer. I’d hate to see the firm’s Yelp reviews.

Fortunately the Straits had a TV trope on their side; internet-savvy investigators who didn’t even have time to finish saying

, “Let me see if I can hack this site,” before announcing, “I’m in.” The investigators found Dr. Nancy Deemer, a former research chemist for Amerifarm whose tests proved Greencoat was “five hundred times more carcinogenic than cigarettes.”

Amerifarm objected to Dr. Deemer’s testimony because the plaintiffs wanted Dr. Deemer to testify “about the results of tests that there’s no record of. It’s impossible for us to impeach her testimony and it’s prejudicial to the point of farce.” Elijah pointed out that the reason there were no records is that Amerifarm destroyed the records. The judge ruled that Elijah made “a compelling argument. However with no way to support or impeach what Dr. Deemer would say I must side with the defense,” and wouldn’t let Dr. Deemer testify about any tests she had performed.

Funny, I remember law school teaching that everyone had the right to cross-examine witnesses, but I don’t remember any lesson saying everyone had the right to be able to impeach a witness. Sometimes witnesses don’t have anything in their background that allows them to be impeached. That doesn’t mean that the witnesses can’t be called as witnesses, it only means opposing counsel will have a harder time in its cross-examination.

Moreover, if Amerifarm didn’t want anyone to see certain test results so destroyed the very records its attorneys needed to impeach a witness, that kind of violates the centuries-old legal principle that one must have clean hands to come into equity. Arguing that, Dr. Deemer shouldn’t be allowed to testify, because we destroyed the tests we need to impeach her is kind of like Jeffrey Dahmer arguing he shouldn’t be tried for murder, because he couldn’t cross-examine the victims.

Sydney asked Dr. Deemer a simple question, was there anything she wanted to say to Edgar Soriano and his family? Dr. Deemer looked the Sorianos in the eye and said she wanted to tell them she was sorry. Then as the defense objected and the judge sustained the objection and ordered the jury to disregard Dr. Deemer’s testimony, Dr. Deemer continued by saying “This did not have to happen. They knew that this was dangerous. They came to my lab.”

Later, the jury returned its verdict. It found in favor of Edgar Soriano and awarded him 1.4 million dollars in compensatory damages and 45 million dollars in punitive damages.

So, yay! Happy ending.

Except, no. Wouldn’t happen. Not in any court in the land. But you knew that already. Why else would I even be here today, if that verdict weren’t complete garbage?

In the first place, the jury would never even have deliberated in this case. The Straits offered no evidence that proved Greencoat or Amerifarm caused Soriano’s cancer. Literally, no evidence. The court didn’t allow any of their expert witnesses to testify and ordered the jury to disregard Dr. Deemer’s testimony.

In every civil trial, the defense will, as a matter of form, move for something called a directed verdict after the plaintiff has presented its case. When, as in this trial, the plaintiff offered no evidence to prove its case, the judge will grant the directed verdict and direct the jury to return a verdict in favor of the defense. So Soriano would have lost right after the Straits presented his case.

Even if, for some unfathomable reason, the judge allowed a case in which the plaintiffs offered no evidence to go to the jury and the jury returned a verdict in favor of the plaintiffs, after the verdict the defense would move for something called a JNOV, from the Latin phrase non obstante verdicto, or Judgment Not Withstanding the Verdict. It’s a motion in which the defense argues that despite the jury’s verdict, it is entitled to a judgment in its favor as a matter of law.

In this case, Amerifarm would again, and correctly, argue that the Straits didn’t offer any evidence linking it or Greencoat to Soriano’s cancer, so the judge would be required to grant the motion, overturn the verdict, and return a verdict in Amerifarm’s favor. So Soriano would have lost again after the jury verdict.

And if for some reason the trial judge didn’t grant the JNOV, Soriano would have lost on appeal. A court of appeals would have reversed that verdict faster than I could figure out how to pronounce non obstante verdicto.

When all was said and done, Amerifarm would have been 69 and 0, because the Straits hadn’t said or done anything. Not only would Amerifarm have won, Sydney might then be brought up on disciplinary charges for her improper question to Dr. Deemer. And then Soriano would have sued the Straits for malpractice.

So I guess there’d be was a happy ending, after all. Because a malpractice suit against the Straits? That case Mr. Soriano would win.

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

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.

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

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, 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.