Category: The Law Is A Ass

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

End of story.

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

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

I knew there was a reason I liked his stories.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thor swearing on a Bible

The Law Is A Ass #448: The (Dare)Devil’s In De Tales

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.

Thor swearing on a Bible

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

The Law Is A Ass #447: Daredevil’s An Entrapment Keeper

The Law Is A Ass #447: Daredevil’s An Entrapment Keeper

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?

The Law Is A Ass #446: The Kingpin Becomes A Night-Mayor

The Law Is A Ass #446: The Kingpin Becomes A Night-Mayor

The Law Is A Ass #446: The Kingpin Becomes A Night-Mayor

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?

(more…)

The Law Is A Ass #445: The Justices Tell Daredevil SCOTUS Hell

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.

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The Law Is A Ass #444: So, Is Daredevil Appealing?

The Law Is A Ass #444: So, Is Daredevil Appealing?

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?”

The Law Is A Ass #443: Daredevil Has To Prove He’s The Devil You Know

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.”

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The Law Is A Ass #442: Daredevil Shouldn’t Give A Testimony-Al

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.

The Law Is A Ass: All Rise by Bob Ingersoll

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.”