I told you last column that the Supreme Court of the United States https://www.supremecourt.gov would accept jurisdiction over Matt (Daredevil) Murdock’s appeal in the case of New York v Slugansky. And in Daredevil Vol 5 #25, there he was before the Supreme Court arguing that the New York Court of Appeals was wrong when it reversed a lower court’s ruling that masked super heroes should be allowed to testify without revealing their real identities and that the Supreme Court should reverse the New York Court of Appeals and reinstate both Slugansky’s conviction and the lower court’s ruling permitting masked super heroes to testify anonymously.
Of course, I had a slight advantage. I read Daredevil #25 months ago. I wrote that last column with it’s will he or won’t he get to the Supreme Court line this month. So I sorta, kinda, already knew what the Supreme Court did before I wrote that cryptic closing.
Before Matt actually set foot in the Supreme Court building, he made a stunning confession to his friend and former law partner Franklin (Foggy) Nelson. Matt admitted he took a dive. He lost the appeal in the New York Court of Appeals on purpose just so he could argue the case before the US Supreme Court and create precedent that would cover not just New York but the entire country.
Which, as professional ethics go, is only slightly better than pushing your client under an oncoming steam roller after having picked his pocket. Better, but still messier.
The Lord giveth and the Lord taketh away. Sometimes. And sometimes it’s a bunch of old people in robes.
Matt Murdock won a big victory in the New York Supreme Court. He convinced the judge presiding over the trial of Simon Slugansky to allow Daredevil to testify while still masked and without revealing his secret identity. He won a second big victory in the Appellate Division of the Supreme Court, when it upheld Slugansky’s conviction. Then he lost it all when the Court of Appeals, the highest court in New York, reversed Slugansky’s conviction 4-3. We didn’t see the actual ruling in the story, but I’ll assume it ruled masked super-heroes could not testify without revealing their masked identities.
Now you may be wondering how could that happen? No, not how could Matt have lost in the Court of Appeals. I spent the last twocolumns telling you why Matt should never have won in the Supreme Court, let alone prevailing in a court of appeals. You’re wondering how the Court of Appeals could be the highest court in New York and the Supreme Court could be the lowest.
The answer is simple. That’s how New York chose to name its courts. The Supreme Court is the trial court in the superior courts, the Appellate Division is the first level of appellate court, and the Court of Appeals is the highest court.
Yes, I know it goes against common sense. After all, according to Dictionary.com supreme means “highest in rank or authority.” That would mean that the supreme court should be the highest court. And for most of us the Supreme court is the highest court in our states or, in the case of the federal Supreme Court, the highest court in the land. Just as God, the supreme being, should be the highest personage in the heavens.
Except those of us who are married know that God isn’t the highest. That would be Mrs. God. So, if the supreme being isn’t the highest being, maybe a supreme court doesn’t have to be the highest court. New York took advantage of that little loophole and decided to give its appellate courts skewed appellations.
Is this the end of Matt’s plan to allow masked super heroes to testify while masked? If I were to tell you that Daredevil vol 5 #24 was only the fourth part of the “Supreme” storyline and that a five-part story would fill out a nice trade paperback collection much better than a four-part story would, would that answer your question?
Of course it’s not the end.
Matt decided to appeal the Court of Appeals opinion to the United States Supreme Court by filing a petition for a writ of certiorari. A writ of Certs and Dory? What’s that?
A petition for a writ of certiorari is a legal pleading filed with the United States Supreme Court which asks the court grant certiorari over the case so it can accept jurisdiction and rule on its merits. It’s how most case are appealed to the US Supreme Court.
There was just one little hitch in Matt’s plan; his boss. Manhattan District Attorney Ben Hochberg had all the backbone of cream of mushroom soup without the mushrooms and was reluctant to appeal.
According to Hochberg, the case was a, “spectacle” that would “reflect on [his] office. If Matt were to lose in the Supreme Court, “you’ll look like a maniac, tilting at windmills. It’ll end your career.”
Losing a high-profile case in the Supreme Court would end your career? That must have been news to Henry Wade, the district attorney for Dallas, Texas. He lost the high-profile case of Roe v. Wade in the Supreme Court in 1973 and continued to serve as Dallas DA until 1987.
Ben, old boy, lots of people lose in the Supreme Court. Statistically speaking about fifty percent of all litigants lost in the Supreme Court. And it didn’t end their careers. In fact, arguing a case in the Supreme Court – win or lose – is considered a rarefied honor in the legal profession; one which usually opens more doors than it closes. So stop acting like Zachary Smith’s even more-cowardly brother and let Matt do his frikkin’ job already.
To his credit, Ben did let Matt appeal. Reluctantly, and with some crippling restrictions. “I won’t stop you – it’s still your case – but you’re on your own. D.A. resources and personnel are off-limits.” Which, of course, they can’t be.
Ben was wrong when he said it’s Matt’s case. It isn’t. It’s Ben’s case. Matt isn’t a party to the case. The parties are Simon Slugansky as defendant and the state of New York as the Plaintiff. As New York isn’t an actual person, it can’t actually appear in court. Yes, most courtroom doors are double wide, but you still can’t get an entire state through them.
New York has legal representatives who appear in its stead. In criminal cases, said legal representatives are the districts attorneys. As the District Attorney for Manhattan, Ben Hochberg’s the legal stand-in for New York in the case. It’s his name which appears on all the pleadings. Matt can sign the pleadings and argue the case, but only as the duly authorized representative of District Attorney Ben Hochberg.
So Ben literally can’t forbid Matt from using the office resources. Yes, he can say Matt can’t use the officer personnel to help him, can’t use the office computers, can’t use the office Lexis or Westlaw accounts to research the case, can’t even use the office staplers to hold the briefs together better than Ben’s reasoning holds together. But at the end of the day, or the beginning of the day or the middle of the day, or whatever part of the day Matt finishes up his writ and is getting ready to send it off to the Supreme Court; Ben can’t deny Matt all of the resources of the office of the District Attorney for Manhattan. When it comes time to sign the writ, Matt still has to sign it as a representative of Ben Hochberg.
Win or lose, Ben, your name still has to be on that writ somewhere. So, Ben, don’t you think in the long run it would be better for your name and your office to give Matt all the resources he needs to win the case considering your name and your office will be part of the case no matter what you do.
The issue ends with Matt Murdoch persuading his former law partner, Foggy Nelson, to help him prepare the writ, but without any mention of whether they actually get the case before the Supreme Court. What do you think, will they get there?
Before you answer, remember this: earlier I said this was only part four of the “Supreme” storyline and that trade paperbacks work much better with five- or six-part stories. That means it’s very likely that Daredevil vol 5. #26 will be “Supreme” part five, and if Matt and Foggy don’t get their case in front of the Supreme Court, what are they going to fill the issue with? The Three Stooges’ “Disorder in the Court?”
Testimonials from family and friends. DNA tests. Those embarrassing Facebook photos that no one but you would ever post.
But how do you prove you’re you, if nobody other than you knows who you are?
That was the problem facing Daredevil in Daredevil v 5 #22. He had convinced a judge to let him testify in court against one Simon (Slug) Slugansky while still wearing his mask and without revealing his true identity. Okay, he hadn’t convinced the judge, Daredevil’s unrevealed secret identity of assistant district attorney Matt Murdock convinced the judge by way of a legal motion. How Matt did that, I don’t know, as I laid out in my last column. But he did. However, now, in order to testify, Daredevil had to convince the court that he really was Daredevil under that bright red costume, because, as the judge put it, “Anyone can put on a suit, Mr. Devil.”
It’s nice to know Daredevil paid attention. I just wish he had stayed for the whole lecture.
For as long as there have been costumed heroes, there’s been the problem of what do those heroes do with the bad guys after the heroes catch them. Mostly they just left the bad guys behind for the police to arrest and hoped that the criminal justice system would sort it all out. As I have mentioned in the past, that wouldn’t work.
When the costumed hero was the only witness to the bad guys’ badness – as was frequently the case – the criminal justice system would need the costumed hero to testify. And that could be problematic. Problematic? Compared to that task, booking Alexander Hamilton himself to join the touring national company of Hamilton is just problematic.
Nevertheless, in Daredevil Vol 5 #22, Matt Murdock, Daredevil’s secret identity and an assistant district attorney, devised a plan by which masked heroes could testify without taking off their masks. His first step was to have Daredevil testify at the trial of Simon Slugansky, AKA Slug.
(Wait, wasn’t there already a Marvel villain, Ulysses X. Lugman, who went by the sobriquet Slug? We really have run through all the good names when we’ve got people claim jumping Slug?)
I’ll spare you the long-winded legal arguments that went down in the case, mostly because the story spared us those arguments. It didn’t actually tell us what arguments Matt made to convince a court that having a masked super hero testify didn’t violate the Sixth Amendment’s right of confrontation. All it did was play coy lip service to the arguments with lines like, “You like the section that responds to your Rovario argument and the U.S. v. Sanchez argument is particularly clever as well.”
So the story knew enough to know that Rovario and Sanchez were leading cases on the question of whether an anonymous witness may testify without revealing his or her identity but not enough to know what arguments could be raised to counter their holdings. That’s kind of like knowing that two plus two equals, without knowing what it equals.
All we know is that after an in-chambers hearing, the judge presiding over the case came out and said, “The prosecution has convinced me that the man who wears this mask is not anonymous. In fact he is very well known. He is Daredevil. We know his powers and his long-standing stance against crime. He has helped this city and this world in countless ways. Various courts have affirmed the idea that under certain circumstances, witnesses can offer confidential testimony – the Seventh Circuit, even the U.S. Supreme Court. In my view, Daredevil satisfies these conditions.”
Which is where I call BS, even though BS is usually called something a little bit stronger. It is true some courts have held that witnesses may testify while concealing their identities from the jury, the defendant, and their attorneys. In the 1987 espionage trial of Clayton Lonetree, the courts agreed to let a government intelligence agent testify without revealing his true identity to the defendant or his attorneys. In 2008, a Chicago court allowed Israeli intelligence officers to testify against a man accused of aiding Hamas without revealing their identities to the defendant or his attorney. But here’s the thing, in each of those cases, the witnesses testified confidentially but not anonymously. I say not anonymously, because somebody knew the witnesses’ real names.
In order to balance the prosecution’s need of the confidential witness with the defense’s right to cross-examine the witnesses, courts have required that before it would allow a witness to testify without revealing his or her identity to defense counsel, people who knew the witness’s true identity answer some preliminary questions about possible impeachment information. Information such as, Has the witness ever been convicted of a felony? Does the witness hold a bias in this case that would affect his or her testimony? In this way, the prosecution could protect its witness, but the defense would get some of what it needed for cross-examination.
So when the judge ruled that Daredevil was not an anonymous witness, the judge was just wrong. The court, the attorneys, the jury and the public at large might know what Daredevil stood for and how many times he helped the city or the planet. However, Daredevil was still an anonymous witness, because after the Purple Children used their mind control powers to make everyone forget Daredevil’s secret identity, no one knew who Daredevil was. Which meant that the prosecution could not supply Mr. Baden, Slug’s defense attorney, with any information which Baden had a right to know so that he could cross-examine Daredevil.
Had Daredevil ever been convicted of a felony? Who knows. Certainly not the state. Was Daredevil secretly dating Slug’s ex-girlfriend so had a personal reason to want to see Slug behind bars? Your guess is as good as mine and probably better than Baden’s. However, Baden shouldn’t have had to guess, he and Slug had a constitutional right to know the answers before Daredevil ever took his oath.
I think the judge was wrong in allowing Daredevil to testify when no one knew who he was or what impeaching information might exist in his background. The trial court didn’t agree with me – but after twenty-eight years as a public defender I’m more than a little used to trial courts not agreeing with my opinion, even when my opinion was correct. In fact, I’m a lot used to it.
So the trial court ruled that Daredevil could testify as long as he could prove that he was actually Daredevil under his red costume and mask. How a masked super hero would actually prove that he was who he claimed to be under that mask is something I actually covered in my very first column back in 1983. A column you can read again in – here comes the plug – The Law Is a Ass: All Rise, a recently-published book that collects my first twenty columns and which you can buy right here.
Was Daredevil able to convince the judge that he actually was Daredevil under that costume and testify against Slug? I don’t have the room left in this column to answer that question. So be with us next time for “Who Was that Masked Man?” or “Witless For the Prosecution.”
There’s really no way not to feel pioneering when Chuck Tingle‘s collection makes us feel like cheering. We hope DSE will not try now to state that this was a market they could– penetrate. Perhaps they have learned to keep their case shut. You limit fair use… you’ll get slammed in the butt.
Central City district attorney Cecile Horton is really bad at her job. But, to be fair, when it comes to job performance, Cecile’s husband, detective Joe West of the Central City Police Department, is about as sharp as a bag of Nerf Balls.
Michael E. Uslan is, among many other things, an executive producer of the Batman films. This post is reprinted with his permission.
I’ve always believed that the star of a Batman movie is… Batman. For me, it is not about hiring a big box office draw like making Tom Cruise The Batman for a generation. It is all rather about making Bruce Wayne come to life. Because of that conceptually, the most important aspect of casting is not necessarily the actor, but rather the filmmaker. Does the filmmaker have a love for and understanding of the character? Does he or she have a passion for the character? Does the filmmaker have a vision for the character and do you believe he or she can execute that vision? Ultimately, more than track record, it comes down to trust.
I have a long running tradition of giving my readers a gift on my birthday. That gift was usually a piece about an amazing person. Yesterday was my birthday— this was to run then, though I wish it would have never run.
Lash was among the best the comic book industry had to offer.
As an artist or writer, he could hold his own against anyone and outclassed most. His masterwork Supernatural Law is a rarity in any media, an original concept which maintained its originality from its early beginning as Wolff and Byrd, Counselors of the Macabre in 1979 until its transition to a web comic in the early 2000s.
In 2019 there are still few ideas as original as Batton’s series about the law practice of Alanna Wolff and Jeff Byrd, whose focus is defending monsters and other supernatural beings in court.
That was a brilliant idea, and almost 40 years since its creation it’s still just as excellent. Batton’s career featured many unique ideas I won’t go into here just know his body of work would be sufficient enough reason to say Batton Lash was among the best the comic book industry had to offer.
as his work is it is not the first reason, I think Batton Lash was a shining
light in the industry.
reason is the kind of man Batton Lash was, a brilliant kind and genuine
soul. That’s rare and hard to believe
nowadays even rarer to a man who believes less and less about the milk of human
Batton passed away last January it’s now the last days of April; regrettably, I didn’t notice until a few days ago when I tried to call his wife, Jackie Estrada before I could I had to make another call first.
Long story short: for well over a year a hacker has disrupted most of my organization with a vicious personal assault. Yeah, someone really hates me that much. As Prince said in his song “Let’s Go Crazy”, there’s something else… and the hacker isn’t even a close second of things I worry about. I’d often thought about people who unplug from the world with envy; therefore, I did what some may consider a nuclear option, wiping or replacing all computers cell phones tablets, and no social networking.
it up to a tech company to make sure vital files and contacts was purged, that
meant I no longer have my contact info readily available; moreover, no one has
my new information, not even my management.
smart BRILLIANT move…for an idiot.
helped me realize just what an idiot I was, and that’s not the first time. The
first time was 2 decades ago during a ‘elevate the industry’ discussion at Pro
audience of creators, publishers, and vendors were debating ways to elevate the
comic business to bring in more women readers. To some that meant less
superpowered plotlines, women characters drawn and written without the
mandatory T&A 15-year-old boys crave. Lastly the curtailing of needless
agreed with all that.
I stood and agreed with a short but elegant (so I thought) speech.
way the entire audience would know what a forward-thinking man about town I
was. “We need less superpowered plotlines, women characters drawn and written
without the mandatory T&A 15-year-old boys crave and a curtailing of
sat down, Batton got up turned towards me (no doubt to co-sign my greatness)
and said, something like “Michael, with all due respect your new line of books
are filled with superpowered plotlines, women characters drawn and written with
T&A 15-year-old boys crave and plenty of needless violence!”
I’d forgotten about that tiny bit of truth.
I’d met Batton, but we were far from friends at the time and lightyears from “let me school you in front of everybody” terms. I was pissed and knew I’d stay pissed forever.
about 10 minutes for my fury to flutter away.
caved because Batton came over after the panel with that copyrighted Lash grin,
that smile was so sincere I could not stay mad, and I knew when he spoke to me
“with all due respect” wasn’t just lip service. Batton defended his point
of view without insult while respecting mine which he knew differed in my work
at the time. In short, he was a throwback to a time when integrity was
Years ago, I received a call from an African American website asking me to comment on a “racist” cartoon on a far-right website featuring our last President and his wife.
I’d take a bullet for the Obama’s faster than the Secret Service could yell “gun”, so I was ready to get my “OH NO THEY DID-ANT” on. After looking at the cartoon, my quote for the website was; “The cartoon was silly satire, not racist” because that’s what it was.
website didn’t use my quote.
co-created the cartoon. I’m Black and there was a better chance of me becoming
Grand Wizard of the KKK than of Batton Lash being racist.
been in no hurry to reconnect with the world so instead of re-joining my
network if I needed a contact, I’d call my manager when I called to get
Jackie’s number my rep told me Batton was gone.
show my appreciation for people who have shown me kindness I often gift them a
painting. It’s the greatest show of love and respect I can give a person. I’ve
lost all my immediate family learning the hard way to let people know you care
as soon as possible. A few years ago, to celebrate Batton’s and Jackie’s
anniversary I did a painting for them.
delivered to the wrong address and took months to find it. Once found it was sent back to me damaged. I’d
just finished reworking it thus the call to Jackie to get the correct address.
death and the amount of time passed before I was aware was an agonizing ordeal
for me. So determined was my desire to avoid any life occurrences I purposely
made it impossible to reach me.
made me realize what a self-centered thing I did.
Lash was significant, he mattered I should have known and paid my respect to
his memory and condolences to Jackie long
really liked and admired Batton for sure as a creator but suffering from depression,
my focus was his humanity.
opinion, Batton Lash was the best of us.
I don’t have the words to convey how sorry I am for your loss. Please know I
will honor Batton’s memory and value the friendship of you both for the rest of
Sorry it’s been a while. September until May constitutes a while, cause it’s a bit longer than a little while. Between out of town comic book conventions, trips to Chicago, family vacations, trips to Chicago, holidays, even more trips to Chicago – including a lengthy one to help my daughter when, first, she pulled a rib muscle and couldn’t lift her two-year-old and another lengthy one when she gave birth of my grandson – and various and sundry other sundries that I can’t talk about quite yet; I just haven’t had much time to write a column.
But I’m back with a vengeance. The vengeance being what the fine and patient folks at ComicMix will demand if I go this long between columns again. So, as the Prufrock is in the puttin’ words together; “let us go then, you and I…”
…And then they throw their guns at him.
Seriously, how many times did we see that scene play out in the Adventures of Superman TV show with George Reeves? Superman confronts some two-bit thugs – the show’s budget didn’t allow them to spend more than twenty-five cents for extras – the thugs would shoot at Superman, and the bullets would bounce off him harmlessly. Then, after the bad guys emptied their guns at Superman without effect, they’d throw their guns at him believing guns thrown at maybe 50 mph will do Superman harm when projectiles moving at 1,067 feet per second had already bounced like their last rent check.
An oft-repeated scenario which prompted one Ron Hartley to tweet me with a question: under this fact pattern, would the criminals be guilty of a crime? Not some silly low-grade crime like illegally discharging a firearm or an excessive noise violation, are they guilty of a major crime?
To which I answer, it depends. No, not because lawyers are constitutionally incapable of answering a yes or no question “yes” or “no.” I answer it depends, because the answer actually does depend on a few variables.
First, let’s zero in on of what crime might the criminals be guilty? Not murder. Superman didn’t die. But by firing their guns the criminals did commit an act which, if successful, would have resulted in killing Superman. That’s attempted murder. Then there’s some type of assault. What type? As a bar-be-cue chef who’s fond of Shakespeare might say, “Ah, there’s the rub.”
I turn to the Model Penal Code, a document written by the American Law Institute in an effort to update and unify the penal laws throughout the country. Toward that end, the MPC contains model statutes which define crimes and penalties. Since it’s first publication in 1962, more than half the states have modified their criminal codes to incorporate language of the MPC in their penal codes. So the MPC is about as close to a universal criminal law of the land as we’re likely to get.
The MPC defines aggravated assault as causing, or attempting to cause bodily harm to another with a deadly weapon. Note that attempting to cause part, that means the criminal doesn’t have to cause actual injury, the criminal can merely attempt to cause injury with a deadly weapon. So if a criminal shoots at you and misses, you’re lucky. The criminal, not so much. The criminal attempted to cause physical injury with a deadly weapon, and so is guilty of aggravated assault, even though you’re peachier than a peach cobbler washed down with peach schnapps.
To get back to our question, if criminals shoot at Superman and the bullets bounce off him, the criminals still attempted to cause bodily injury or death. So they would be guilty of aggravated assault and attempted murder. Right?
To which I say, not so fast there, Speedy Gonzalez. Like a man who leapt into a brick wall, you’re jumping to contusions.
There’s one additional matter that must be considered. We must also answer the question did the criminals know the bullets would bounce off of Superman when they shot at him?
In the law, an attempt crime – such as the attempted murders or aggravated assaults we’ve been talking about – is what the law considers a specific intent crime. In order to be guilty of an attempt, the criminal must have specifically intended to commit the crime he or she was attempting. In our Superman question, to be guilty of either attempt crime, the criminals must have either intended to kill Superman or to cause him physical harm when they shot at him.
Now we know that killing Superman with bullets is impossible, they bounce off him like raindrops on roses. (Don’t complicate the matter with hypothetical Kryptonite or magic bullets, we’re not talking about the Kennedy assassination.) So killing Superman with bullets is impossible. The law recognizes the possibility of an impossibility defense to attempt crimes. If a criminal is attempting to commit a crime that is impossible, then the criminal could not have intended a specific result, because that result is impossible.
So there you are, if the criminals were attempting the impossible crime of shooting Superman, then they can’t be guilty of attempted murder or aggravated assault. Right?
Of course, not right. Not only can’t the law can’t answer a yes or no questions “yes” or “no,” it can’t even answer it with a definite maybe. It’s got to throw in a few depends along with a perhaps or two to muddy up the maybe.
Let’s look at a classic example law schools use to explain this conundrum. A man – the criminal – shoots another man – the victim. But what if the victim was dead at the time the criminal shot him? Obviously, it’s impossible to kill a man who’s already dead. So the criminal can’t be guilty of murder. But can the criminal be guilty of attempted murder, or does the impossibility defense come into play?
The answer to that question depends on what the criminal knew at the time he shot the dead man. If the criminal knew the man was dead, then the criminal knew killing the victim was impossible. The criminal couldn’t have specifically intended to kill the victim, so the impossibility defense would apply, because the impossibility negated the defendant’s specific intent.
But what if the defendant didn’t know the victim was already dead? What if the criminal believed the victim was alive when he shot and did intend to kill the victim? Then the impossibility defense doesn’t apply.
The law reasons it out like this, if the criminal attempts an impossible crime but doesn’t know it’s impossible, then the defendant would have been successful in the crime, had the facts been as the defendant believed them to be. So, because the defendant intended to cause a specific result, the defendant is still guilty of the attempt, even though the crime attempted turned out to be impossible. If our hypothetical would-be murdered cum corpse abuser didn’t know his intended victim was already dead, he would be guilty of attempted murder.
Or, to get back to the original question, if the crooks shot at Superman knowing the bullets would bounce off of him, they might be guilty of littering for spreading spent bullets all over the place, but they wouldn’t be guilty of attempted murder or aggravated assault. They knew murder and assault was impossible so didn’t specifically intend either. If, on the other hand, the mugs didn’t know the bullets would bounce off Superman and believed the bullets either kill or injure Superman, then they’re not only stupid, they would also be guilty of attempted murder and aggravated assault. Is it any wonder that I retired from the law? After almost three decades in that morass of maybes and trying to make sense of laws that have more depends in them than a nursing home, my hair turned whiter than snow on the Night King’s butt.
UPDATE: Michael was hacked badly, with messages sent out to family and friends. He’s alive and well.
We are incredibly sad to report that Michael Davis, longtime columnist for ComicMix, committed suicide one day before his birthday.
We can list all his accomplishments in the comics field and go through his history and impact in the field, from his mentoring of numerous up and comers in the industry to his co-founding of Milestone Media and Motown Animation & Filmworks AND The Guardian Line AND The Black Panel at San Diego Comic-Con AND… but the best way to hope to understand and know Michael is through his words and his works.
There will be more to say later about him, but right now we’re too shocked to be coherent. Please, if you or someone you care about are considering self-harm or suicide, contact the Suicide Prevention Hotline.
We’re sorry we couldn’t have helped you more, Michael. Rest easy.