Creepy and Engaging. To me, that’s the way every scary summertime story should be. Well, summer’s over but the latest from Aftershock, Midnight Vista, gave me that same type of feeling. I think that as I read this series during the fall, I’ll be able to keep that summertime vibe in the months ahead.
Yes, him, again.
Matt Murdock. Daredevil. The subject of our last six get togethers.
But not to worry, we shan’t be talking about him again. Ever. Daredevil #612 was the last part of a four-part story called “The Death of Daredevil.” So that’s it, isn’t it? Daredevil is dead.
I mean, it’s not like Marvel would kill off a character and then bring him or her back to life, is it?
In Daredevil #609, the start of the four-part story, Matt was hit by a truck while saving a kid. I don’t know if it was a Mack truck or a semi with a hemi or even a hemi-demi-semi-quaver, but it was big. Big enough to send Matt to the hospital and to reevaluate his lot in life. Lots.
And Matt decided what he was going to do, if it was the last thing he did, was to prove that Wilson (The Kingpin of Crime) Fisk rigged the election and wasn’t legally the mayor of New York City. So Matt gathered together a team who could help him assemble the proof he needed to take down Fisk.
For three issues assistant Manhattan district attorney Matt Murdock and his team did just that. Assembled. They assembled more than Bob the Builder on speed. Until finally, Matt had a strong enough case to take to his boss, Manhattan district attorney Ben Hochberg.
Hochberg didn’t agree. Fisk was, after all, the Mayor. He was Hochberg’s boss and set the budget for Hochberg’s office. Hochberg didn’t want to risk rocking the boat by accusing Fisk of rooking the vote. But Matt prevailed on Hochberg with all the powers of persuasion that he could muster in all of five panels and Hochberg relented. He prosecuted Fisk for election fraud.
First Hochberg called Daredevil. Then he called the rest of Daredevil’s team; Cypher, Frank McGee, and Reader, supporting characters in the story that were so unimportant that I almost didn’t even mention them here. Then Hochberg called every character in the Marvel Universe from A-Bomb to Zzzax.
Okay, not really. But he did call Captain America, Thor, She-Hulk, and Spider-Man.
Oh yeah, and then, as the main event, Hochberg called as his final witness, Wilson Fisk.
Now I wish I could say, “not really,” again, but I can’t. Hochberg called the defendant as a prosecution witness.
But I’m not going to write about that; I already have. Several times. In earlier columns, I’ve covered the fact that the Fifth Amendment’s guarantee against self-incrimination means the prosecution can’t call the defendant as a prosecution witness about as many times as Vin Scully’s covered the Los Angeles Dodgers.
Beside which, it’s not like the trial actually happened. Because at the end of the story we learned that…
This is the place where I’d usually issue a SPOILER WARNING, but I’m not going to. If you’re like me and speak fluent cliché then there’s no way anyone can spoil…
…it was all a dream.
Matt was actually still in the ER after being hit by the truck. The whole four parts of “The Death of Daredevil,” including the trial and conviction of Wilson Fisk and his recall as mayor, was a dream Matt was having while the ER doctors were operating on him.
As endings go that one was a Ken Berry; a big F Trope.
So no, I’m not talking about calling the defendant as a witness.
On the other hand, I am going to talk about calling Thor as a witness, because that feat would have required almost as much legal legerdemain as calling the defendant.
Before witnesses can testify, they generally have to take the oath and swear “to tell the truth, the whole truth, and nothing but the truth, so help [them] God.” Generally, if a witness isn’t willing to take that oath, the witness is not permitted to testify.
Notice, I said, “generally.” Sometimes a witness doesn’t have to swear an oath before testifying. After all, how could Thor swear so help him God? Thor is a god. Okay, not the Judeo-Christian god name-dropped in the standard court oath, but he is the Norse god of thunder. An oath before the Judeo-Christian God would be meaningless to Thor as he doesn’t believe in that god.
In the same way, Thor couldn’t swear so help him some god in which he believed; say himself or Odin. The Anglo-American system of justice doesn’t recognize any of the gods in which Thor might believe as gods, so it wouldn’t allow a witness to swear so help him one of them.
Now, the Anglo-American system of justice does have a back-up. Witnesses who don’t happen to believe in the Judeo-Christian God, like Muslims; Buddhists; Hindus; or atheists who don’t happen to be in a foxhole, have an alternative. They can affirm under penalty of perjury that they will tell the truth, the whole truth, and yadda, yadda, yadda. But for Thor, even such an affirmation might be a whole yadda nothing.
Thor is, after all, the prince of Asgard. As such he might well have diplomatic immunity from prosecution for crimes committed in America. Even perjury. If that is the case, the affirmation would have no meaning to him and wouldn’t be sufficient to guarantee that he would tell the truth.
Sure Thor could spout off some pseudo-Shakespearean speech and assure the court that, “the word of the Son of Odin is ever my bond” and that he would no more tell defy the laws of man by lying in court than he would defy the laws of gravity by throwing a hammer then flying behind it as it dragged him through the sky.
And maybe the court would believe him and let Thor testify. Or maybe it wouldn’t.
It’s a puzzlement which, fortunately, I don’t have to puzzle over right now. Because I’m not really writing this column right now. It’s all a…
ZZZZZZZ
So, I guess Daredevil is a lot smarter than I thought he was. Which, considering some of the bonehead plays he’s made in the past – Mike Murdock, anyone? – wasn’t all that high. However, in Daredevil #595, Matt (Daredevil) Murdock actually showed some smarts.
No, it wasn’t in acquiescing to the orders of the newly-elected mayor of New York City, Wilson (the Kingpin of Crime) Fisk, that Manhattan District Attorney’s Office, of which Matt was an employee to, “build cases against the vigilantes” to fulfill Kingpin’s campaign promise to “clampdown on non-governmental exercise of authority.”
A smart Matt Murdock would have pointed out to his boss the DA that the office didn’t really have any grounds on which to build a case. Stopping super-powered criminals isn’t a crime. One might even say it’s a public service. If an average citizens sees a crime being committed do we want a public policy that says they should do nothing? And if not, then why do we want one for our above-average citizens?
Moreover, I know of no anti-vigilante law in place in New York City or New York State that the heroes would be violating with their actions. I’m not saying in a world of super-powered people such a law wouldn’t be enacted. I’m just saying I don’t think that has happened yet.
Even the Superhuman Registration Act which prompted the first Civil War in the Marvel Universe seems to have been junked. In Daredevil vol 2 #25, the Supreme Court ruled that masked super heroes can testify in court while still masked. If that was even a question, it would imply that the SHRA had been shelved. If all hero were required to reveal their identities by Congressional law, the whole case about whether they could testify while masked would have been unnecessary. And believe me, the Supreme Court doesn’t like to take cases that are unnecessary. Hell, it only takes a small number of the cases that are necessary.
Even New York’s anti-mask law wouldn’t help justify a crackdown on vigilantes. New York Penal Law 240.35(4), specifically forbids two or more people to congregate in public while wearing masks to conceal their identities. That law wouldn’t generally apply to people like Spider-Man or Daredevil or Ms. Marvel, as they usually work alone and not in congregations. Of course, they’re not in congregations. Crime doesn’t take Sundays off, so neither can they.
It also wouldn’t apply to people like Luke Cage or the Punisher; they don’t wear masks and their civilian identities are known to all. I’m not even sure it would apply to the Avengers, as I think the civilian identities of most of their members are either known to the general public or, in the case of Captain America, to the government. Either way, if they’re wearing masks, it’s not to conceal their identities. So, why are they wearing masks? Maybe they like extreme hat hair.
So the anti-mask law would only apply in some limited instances like the Champions or Marvel Team-Up, which feature two or more masked heroes. But only if they’re acting in New York. And probably only if the villain they were fighting was lame. I think the authorities might look the other way about costumed hero activity, if Dr. Doom were attacking again.
So, yeah, a smart Matt Murdock might have asked his boss on what grounds they build cases against vigilantes. Matt might even have pointed out that hamstringing the costumed heroes would, in the long run, be a bad thing for the city. Costumed villains either wouldn’t be similarly limited or wouldn’t care if they were. Either way, they would continue to commit crimes without adequate resistance if only the non-powered police and not, say, Thor could have at them.
Matt could even have told his boss they should ignore the directive. I seem to recall a few other direct orders from another Chief Executive, which his underlings either ignored or refused to put into operation. So Matt’s actions wouldn’t have been without President— err, precedent.
Matt did show some smarts. He told his assistant that “it can take a long time to build a case… years, sometimes.” Recent events have certainly shown that to be true. Meanwhile, the heroes could be free to act, while the cases against them were being built. Slowly.
But Matt showed his real intelligence later in the issue, when he was on patrol as Daredevil and stopped what appeared to be a simple mugging in Hell’s Kitchen. Turns out it wasn’t so simple. It was a police sting operation designed to find and arrest Daredevil.
No, it wasn’t intelligent for Daredevil to fall for the trap. With his hyper senses he should have detected the presence of the other police officers laying in wait and not fallen for the trap. No, Daredevil showed his intelligence when he told the cops, “This is entrapment. It’ll never stick.”
Because it wasn’t entrapment. That’s what made Daredevil’s statement so brilliant.
Entrapment is a legal defense that argues, “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” The key to this defense is that the government implants the criminal design into the mind of a person who was not otherwise predisposed to commit the crime. Daredevil was already in costume and looking for crimes he could stop. He was pretty much predisposed to being a vigilante. The fact that he found a government sting operation that gave him the opportunity to do what he already wanted to do wasn’t entrapment.
And that’s why Daredevil saying the sting operation was entrapment was so brilliant. Not too many weeks earlier, in Daredevil vol 5 #20, the Purple Children combined the mind control powers they inherited from their father Killgrave, the Purple Man, with Killgrave’s own mind control powers to make the world at large forget that Matt Murdock and Daredevil were the same person. After Matt had his secret identity purpura ex machinaed back into place, he didn’t want to risk losing it again.
That’s why he told the police that what they did was entrapment when he was a good enough attorney to know it wasn’t. It was to fool the police into thinking that in his secret identity Daredevil wasn’t a lawyer who would know the definition of entrapment.
It was brilliant!
Unless, of course, Daredevil wasn’t trying to con the police after all and he really didn’t know the definition of entrapment. Please tell me that wasn’t the case and that Matt/Daredevil did know the definition of entrapment. Please tell me Matt/Daredevil wasn’t as clueless about the law as usual.
Please?
Well, you didn’t think he was going to take it lying down, did you? He’s the Kingpin of Crime, for crying out loud; Mister Passive-Aggressive, without the whole passive part. After Matt (Daredevil) Murdock got a trial court to agree that super heroes could testify anonymously and while masked – you did read the last four columns, right? – Wilson (the aforementioned Kingpin of Crime) Fisk appealed that decision. And when the Supreme Court upheld Matt’s victory, the Kingpin turned to Plan C.
He got elected mayor of New York City.
What is it with New Yorkers in the Marvel Universe and their elected mayors? First it was J. Jonah Jameson, who had to up his game significantly just to reach incompetent. Now the Kingpin of Crime?
TO: Randall L. Stephenson, Chief Executive Officer, AT&T
CC: John Stankey, Chief Executive Officer, Warner Media
Dear Mr. Stephenson,
My name is Michael Davis. I’m sure you know me as I have been a loyal AT&T phone customer for many years.
I know what you’re thinking. You think I’m a bit off my rocker. How ON EARTH could you know me just because I’m an AT&T phone customer?
That’s just silly.
You know me because I have my home, cell phone as well as my Internet and cable with AT&T.
I’m told you have a sense of humor and I hope my opening gave you a chuckle. What the remainder of this letter holds is far from funny.
I’m sure you’re aware when AT&T purchased Time Warner, it became the owner of DC Comics. DC Comics holds some media rights to Static a.k.a. Static Shock through an arrangement with the copyright owner and content creator Milestone Media a company I co-founded.
Full disclosure: DC Comics and I have history. Once I was a welcomed creator; however, the last two decades have seen me banned, literally blacklisted. Long story short; I said the right thing to the wrong person. Please don’t take my word for any of this— the paperwork is readily available at DC. However, this narrative isn’t about me. This article is about property now under your control— the aforementioned Static Shock.
I am no longer a part of Milestone, and they have nothing to do with this letter. I am representing myself and the millions of fans of Static Shock waiting for his return.
Simply Googling Static Shock will enlighten you to the sheer power and reach of the much-beloved character. There are thousands of fan clubs and fan films. Static is a favorite choice of new and seasoned cosplayers from child to adult.
Here’s the kicker—the vast majority of the fans of Static were born after the series had run its course both on television and the comics. In other words, its sheer word of mouth behind the enormous appeal of Virgil Hawkins, aka Static.
AT&T is the nation’s second-largest advertiser— imagine spending no advertising dollars but seeing the demand for your product grow year after year.
That, in a nutshell, is the essence of Static Shock.
“AT&T gives you more for your thing, More entertainment, Internet, and unlimited plans. More for your thing. Yeah, that’s our thing.”
The Your Thing national campaign from AT&T and BBDO focused on the uniqueness of its customers’ request for things that mattered not just words spoken in support of a product. How significant AT&T’s support of the Black community is evident to me by your doings with Believe Chicago.
I don’t point out AT&T’s investment in the African American community, both financial and social, to suck up. I’m not that guy— if I was, I believe I’d still have a home at DC. No, I point out your involvement because I feel there’s a chance, albeit a slim one my plea and the pleas of millions of fans will not be lost in the abundance of requests received by a corporation the size and scope of yours.
Put bluntly, Static is a national treasure among millions of fans, both black and white. However, among black kids, he’s more much much more. As a black man who grew up with so little black representation in media and almost none in the superhero space, so few I had to create my own— it saddens me beyond measure that today is just as bleak as yesterday.
Ignoring the impact of Static makes little sense financially. However, ignoring Static‘s prominence in the black community is corporate callousness at its highest level, in my opinion.
History aside, I nevertheless consider DC’s universe the best in the industry, and the vast majority of those employed there are among the elite in comics.
Dan Didio and Jim Lee are remarkable people who are real fans of the medium. Before they joined DC, I was in business with Dan at ABC-TV and Jim at Image Comics. Nothing but good came from those creative arrangements.
There are companies on the net as I write this selling Static Shock merchandise as if they had licensed them legally from DC and Milestone and they have not. They do so openly with no worry of being caught, let alone punished by one of the world’s most powerful corporations.
If that doesn’t underscore the banking power of Static, then nothing will.
Static Shock generates millions of bootleg dollars while black kids continue to make their own Static Shock content because Warner Bros. and DC Comics will not.
Sir, I’m thoroughly and painfully aware of legal agreements that supposedly make impossible resolutions to what seems a simple fix.
My response is— so what?
Static‘s impact can do wonders with boys and girls of color who see little to strengthen identity put much to weaken it. A president who often speaks of the first black president as unintelligent and lazy. A country returning to a time when if black merely waiting for a friend at Starbucks can get you arrested.
An America where a black man simply saying ‘lower Alabama’ can get you thrown out of a Hilton Hotel and threatened with arrest. Protesting to the police the Hilton’s prejudicial actions can get you killed. So, the thing to do was leave the hotel humiliated rather than face that possibility.
That happened to a guy I know.
Static is more important than a contract, and more significant than any agreement meant for commerce and revenue. A beloved black character not just kept alive by word of mouth but flourishing alone is a goldmine for AT&T if it makes a billion dollars or not a dime.
Agreements are vital; I’m just saying exceptions made for the greater good I would argue keep us dare I say civilized. I’m currently breaking an agreement preventing me from discussing the very matters this article covers, doing so for the greater good.
That “agreement” is a damning smoking gun evidence of a decision made with malice. What did I do to justify a sustained policy of exclusion?
My contributions to the company were never in question; they are stellar. So stellar are my doings at DC it begs the question: is Static Shock being held back because of a personal dislike of Michael Davis?
I’ve been labeled troublemaker, among other things. That’s true—I’m trouble when approached like I’m a child talked to like I’m stupid.
I’m far from stupid. Can’t say the same for the person who sent a fraudulent letter with false information in a bid to stop me from becoming President & CEO of Motown Animation & Filmworks.
That’s stupid.
Having two employees lie to try and frame you?
That’s criminal.
I said Milestone is capable of exploiting Static with or without DC’s involvement, but I hope it is with DC that the next stage of Static happens. DC does the best books in the industry, and the power of AT&T and Time Warner’s reach is awe-inspiring.
The knock, on black content, is diversity doesn’t sell. That usually comes from those who don’t sell diversity because they can’t.
Milestone’s Reggie Hudlin Derek Dingle and Milestone’s inventor Denys Cowan can sell diversity. They have done so all their professional lives.
Static has a worldwide following ignored by DC and Warner Bros. With help from AT&T Warner Bros. and DC Comics I believe Static will do the kind of numbers as a movie to rival or even surpass Black Panther.
Lastly, I leave you with this.
I have history with AT&T also. Your company are sponsors of my forum the Black Panel. I’ve also been invited to participate in various AT&T art shows at AT&T corporate in New Jersey.
Speaking of art, AT&T has one of the most celebrated art collections in the world.
Among the acquisitions are paintings by William T. Williams, underscoring AT&T’s dedication to Black America. Mr. Williams was the first Black artist inducted into Janson’s History of Art.
When that moment happened, he refused. He refused because he felt Janson should acknowledge other black artists that came before him.
Janson did just that; they included other notable African American artists.
The Janson History of Art did that regardless of the time and money it took to accomplish this. Janson is the world leader in art history publications, and to do so was a massive undertaking.
However, it was the right thing to do.
There’s a DC Comics connection to Mr. Williams. The painting used to represent his work is called Batman. Just so happens, Batman is my favorite superhero, I was obsessed with the 60’s TV show.
So much so it drove me to love drawing Batman, which kept me inside and helped keep me alive. My sister and grandmother both died violent deaths that could have easily been me and almost was.
My love of drawing Batman turned into loving art that led to working at Mr. Williams studio. I was working in the studio of a world-renowned artist at a very young age.
I was ten.
He had me ‘work’ in his studio to keep me safe.
William T. Williams is my mentor, my hero, and my cousin. Batman was named with me in mind. So, a DC Comics character is featured in the most influential art history book in the world because of me.
I needed heroes to help me stay alive and when real ones were not available, I found them in comics. I’d like to work with DC again but if it will help get Static to the next level, I’ll sign an agreement stating I won’t use the letters D or C for the rest of my life.
That’s ridiculous, I know.
Not as ridiculous as ignoring the almost 800,000 views David Kirkman’s Static Fan Film has in only weeks on YouTube fueled by just word of mouth. Now think about that number with the power of AT&T Warner Bros. DC Comics and Milestone all operating in concert.
Please consider taking a moment and examine what may be possible.
“AT&T gives you more for your thing, More entertainment, Internet, and unlimited plans. More for your thing. Yeah, that’s our thing.”
All the millions of Static Shock fans ask is for you to do your thing.
—Michael Davis, PhD
Los Angeles, CA
July 2019
I trust none of you doubted me.
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 two columns 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?”
How do you prove that you’re you?
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.
Columns / Glenn Hauman / News
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