Category: The Law Is A Ass

THE LAW IS A ASS

The Law Is A Ass #460: Those “For Life” Sentences Are Nonsense

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

I was wrong.

Last column, I wrote about the first five minutes of the “Pilot” episode of For Life in which we learned that Aaron Wallace was framed, unjustly convicted of being a drug kingpin, then, while still serving life sentence, became a licensed attorney in New York who practiced from prison. I explained how that would have worked. It wouldn’t.

I figured the show couldn’t possibly make another mistake until after its first act break. I was wrong. As I continued watching, I learned it had made another mistake in those first five minutes. Then yet another in its sixth.

Aaron had filed a new trial motion on behalf of Jose Rodriguez. Six years earlier, Jose was dating Molly Davison, a 15-year-old girl from a “good family.” In shows like this that’s code for she was white and privileged. Molly’s parents didn’t approve of the relationship. Ultimately, Jose broke up with Molly.

She kept calling him. After Jose turned 18, Molly called and said if he came over one last time, she’d be alright. He went. They had sex. Jose fell asleep. When he woke up he found a suicide note from Molly in the bedroom and found Molly in the living room, overdosed on drugs she had purchased from Freddy Dawkins.

At Jose’s trial, Molly testified she never wrote the suicide note, which had disappeared. Freddy testified Jose, not Molly, bought the drugs. Jose was convicted of attempted murder, for supplying the drugs that almost killed Molly, and statutory rape, because, as the show put it, “in the state of New York, [sex between] an 18-year-old and a 15-year-old is considered statutory rape.”

Except, it isn’t.

New York is one of several states that has what’s commonly called a “Romeo and Juliet” exception to its statutory rape law. That’s not something people who are barred created for people who quote the Bard. It’s an exception that applies to sex acts between teenagers so that consensual sex between people who are between 15 and 21 isn’t a felony. At best it’s a misdemeanor. Sometimes it isn’t even a crime at all.

The statutory rape laws in New York

, found in Article 130 of the New York Penal Laws, require a defendant to be older than 21, if his or her partner is between the ages of 15 and 17 for the crime to be statutory rape. As Jose was 18 and Molly was 15, Jose didn’t commit statutory rape.

The crime that comes closest to applying to sex between an 18-year-old and a 15-year-old is NYPL § 130.55, sexual abuse in the third degree. It’s a misdemeanor, not a felony. And it has an affirmative defense built into it that applies if the defendant is less than five years older than his or her partner and said partner is older than 14. Molly was 15. Even under the new math 15 is older than 14. As Jose was only three years older than Molly, the affirmative defense should have kept Jose from being convicted of even this crime.

But he was convicted, because he had to be convicted for the story to work. After all, who ever heard a lawyer arguing that a client who wasn’t convicted of anything should get a new trial?

Jose was also convicted of attempted murder. Let’s go back to the trial to see how Aaron got Jose out from under that conviction.

In the new trial motion, Aaron argued Freddy had changed his account and now said Molly purchased the drugs. At some point, off camera, the court granted the motion. Now we didn’t see either Aaron’s motion or his argument in favor of the motion, still I can state with some degree of confidence that the trial court would not have granted it. See, later in the episode, Aaron talked to Freddy Dawkins in prison about how he was going to testify. Which means Aaron didn’t have Freddy’s testimony locked down and wasn’t sure how he’d testify.

A new trial motion based on changed testimony would have to have some evidentiary supplement attached to it to satisfy the court that the witness was actually going to offer different testimony. Say a sworn affidavit from Freddy detailing what his new testimony would be.

No judge would grant a motion for a new trial, possibly ending the defendant’s conviction and hefty sentence, because defense counsel supposed a witness was going to change his testimony. You can’t end a sentence with a supposition.

After Jose testified in the new trial, Aaron announced he intended to call Freddy Dawkins and the police officer on the scene who saw Molly’s suicide note. (Wait, Jose’s first lawyer knew about this police officer and didn’t call him in Jose’s original trial? First, said attorney didn’t argue the Romeo and Juliet exception, then failed to put on a key exculpatory witness. Just how bad was this attorney on a scale of zero to absolute zero?)

That’s when assistant district attorney Dez O’Reilly went to work. He exerted pressure on Freddy, and Freddy recanted his earlier recantation. Ah the old recant the recantation trick. Both on TV and in real life recantations of recantations have more frequency than a short wave radio. Dez also arranged for the bus transporting Aaron and Jose from the lock-up to the courtroom to reroute and deliver them last instead of first. By the time they got to court, the police officer who was to testify was gone. He was working an undercover case and that two hour morning slot was his only window to testify.

Okay

, we didn’t see Dez doing these things, so we don’t know he did them. But from the smirk he had on his face, we know he did them.

The next thing we knew, Aaron and Jose were back in prison. As there was more trial later in the episode, the court must have continued it. I don’t know why didn’t the judge go on with the trial after Aaron learned he had no witnesses? It was only 11:00 a.m., plenty of time for something.

Even if the judge pulled a Perry Mason – noting that it was nearing the noon hour then recessing until 2:00, so Perry could use that recess to set up his last ditch legal trick/miracle – the trial should have resumed later that day. Here, and for no reason, the judge must have continued the case to another day, because Aaron needed more than a two-hour lunch break for his last ditch legal trick/miracle.

After all, it takes time to fabricate evidence.

Aaron called his wife on his hidden cell phone and had her purchase a box of the same note paper Molly used for her suicide note. While Aaron’s wife was traveling to the prison to deliver the paper, Aaron wrote an “anonymous” letter to himself on a prison typewriter. Then Aaron got the note paper his wife brought him and took it, along with a note that Molly sent Jose while he was in prison and Jose himself, to an inmate who was a forger. Jose had memorized Molly’s suicide note. He dictated it to the forger, who forged Molly’s handwriting on a duplicate suicide note. Next Aaron went to someone in the prison kitchen who treated the note with chemicals and heat to age it and remove the fingerprints. (Or something like that, the show wasn’t real clear what was going on here.) Then Aaron went back to his wife in visitation and gave her the fabricated suicide note and the cover letter. She mailed them back to Aaron. That Aaron could organize all this on such short notice was amazing. That the letter actually got back to him in time was incredible. That he got away with this all stretches credulity farther than Plastic Man in a Cat’s Cradle.

The cover letter Aaron wrote purported to be from a anonymous police officer who had responded to Molly’s overdose and said he found the suicide note at the scene and kept it for some reason even though he had been instructed to destroy it, then, years later, sent it to Aaron because of a guilty conscience. At Aaron’s request, the court called Molly for the express purpose of corroborating whether the note included in the latter was the actual suicide note she wrote.

Aaron had Molly read the note in open court. Then he asked her “Are those the words you wrote to Jose the day you overdosed?” Molly confirmed that those were the words she wrote but said the note she was holding was not the note she wrote.

Aaron asked Molly where the original note was. She said her parents destroyed the note than coerced her to lie about Jose so that she wouldn’t be arrested for buying drugs.

And in the very next scene, Jose was released and cleared and everything was good.

Except, of course, for the fact that Molly was prosecuted for perjury and her parents prosecuted for suborning perjury and destroying evidence.

No, that probably didn’t happen. Remember the Davisons were a “good family.” So they probably didn’t suffer any consequences more severe than those that would have been leveled by a young Bob Barker.

But what about Aaron? Didn’t he face disciplinary actions for knowingly presenting falsified evidence to the court? I’d like to say I don’t know. Even though I didn’t watch any more episodes of For Life, because of my research for these columns, I know what happened in them. If you’re good, I’ll tell you about them later.

If you’re really good, I won’t.

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The Law Is A Ass #459: THE SHOW WASN’T ACCURATE “FOR LIFE” OR MONEY

Nicholas Pinnock on "For Life" -  ABC7 Chicago

Five minutes. Couldn’t ABC’s big new legal drama For Life go just five lousy minutes without a major legal mistake? Is that too much to ask?

Yes

, ah say yes, it is.

Sorry about the bad Foghorn Leghorn impersonation. I had to do a bad Foghorn Leghorn impersonation, because I can’t do a good Foghorn Leghorn impersonation. And, I had to say, “Yes,” twice, as there were two major legal mistakes in those first five minutes.

In those first five minutes, a flashback introduced us to Aaron Wallace, a black nightclub owner in New York City who was framed for drug possession. He was convicted of a crime that neither he nor a one-armed man committed and sentenced to prison.

The show then jumped nine years to the present. Aaron was now an attorney arguing a motion for a new trial in his first case. And arguing it against Assistant District Attorney Dez O’Reilly, the same ADA who prosecuted Aaron and who didn’t know his opposing counsel was Aaron Wallace until he saw Aaron in the courtroom.

Then the show quantum leaped back into another flashback that revealed Aaron hasn’t been released from prison. He is appearing as a lawyer even though he’s still serving a life sentence.

Then the show, which was jumping around more than a five-year-old in a bouncy castle, came back to the present for a conversation between O’Reilly and his boss District Attorney Glen Maskins to explain how Aaron became a licensed attorney.

Aaron worked for the prison’s paralegal association helping other inmates with their internal prison legal matters. This got him unlimited access to the prison law library and computers, which he used to attend then graduate from first an online college and then an online law school. Aaron took the Vermont bar, because it was the only state that allowed someone with a degree from an unaccredited law school to take it’s bar. Then Aaron successfully applied to have his Vermont law license accepted reciprocally in New York.

Which brings us up to the five minute and two seconds mark of the show. Okay, I lied, it was five minutes and two seconds. So sue me, maybe you can get Aaron to take the case.

What’s wrong with that picture? Let’s start with ADA O’Reilly having no idea who his opposing counsel was until he saw Aaron in the courtroom.

Legal pleadings have a service clause, a paragraph in which the attorney who filed the pleading swears a copy of the pleading was served upon opposing counsel. It also includes the attorney’s address so opposing counsel can serve their responsive pleading. Aaron’s name and address, Bellmore prison, was clearly on display for O’Reilly to see. Unless O’Reilly didn’t read the motion before appearing in court to argue it, he should have seen Aaron’s name and address.

The show tried to explain why he didn’t see Aaron’s name. The ADA originally assigned to the new trial motion hearing went to the hospital when his wife had gone into labor

, so the motion was only given to O’Reilly thirty minutes earlier. But that excuse, like a napkin in a deli, won’t cut the mustard.

If Dez O’Reilly was going to go argue against a motion he only received thirty minutes earlier, the first thing he’d do is read the motion. After all, he would need to see what arguments the motion made so he’d know what counter arguments to make. And when he read the motion, he would have seen Aaron’s name and address. Reading the motion is the first thing I would have done. But what do I know? I was merely a practicing attorney for 28 years, I didn’t play one on TV.

But that mistake, like a side of tots, is small potatoes. We’ve got bigger spuds to fry: The fact that Aaron is a licensed attorney in New York.

Ex-cons can become licensed attorneys and practice law. Isaac Wright, Jr., the real-life person whose story inspired For Life, did. While he was serving his sentence, Mr. Wright, with the help of a licensed attorney, got all the charges against him dismissed for prosecutorial misconduct. After he was released, Wright graduated college, then law school, and became an attorney. It took him more than a decade, but he did it.

Aaron took a shortcut. He managed to become a licensed attorney without first getting the charges against him dismissed. And while he was still in prison.

Which makes it unlikely that he would been admitted to the Vermont bar. Like all state bars, Vermont’s bar requires an applicant meet its character and fitness requirements. I’m sure those requirements would put a big old biggest frowny emoji on an application from a convicted drug offender who was serving a life sentence in another state and denied it. Most states don’t want people becoming criminals until after they’ve been admitted to the bar and have learned how to cover their tracks. It’s much less embarrassing that way.

The show told us a former state senator in New York vouched for Aaron to get him past the character and fitness requirements in New York. Maybe that former senator did grease the wheels in New York. But how much pull would he have had with the Vermont bar? About as much as a teddy bear in a taffy factory.

And what about travel expenses? Vermont would have had to pay to transport Aaron from a prison in New York to some Vermont courtroom every time he had a case to argue. That also should have caused Vermont to deny the application, as the other way would be to practicality and fiscal responsibility what balsa wood is to fighter jets.

But even if Aaron was admitted to the Vermont bar, he still wouldn’t have been able to get New York to grant him reciprocal admittance its bar. When states have a reciprocity agreement, members in good standing of the bar in one state can be admitted to the bar of another state without having to take the new state’s bar exam. New York and Vermont do have a reciprocity agreement, so Aaron could have had New York accept his Vermont license reciprocally. Provided he met the requirements of Rule 520.10 of New York’s rules for admission to the bar.

By now you should know me well enough that I shouldn’t have to spell out those requirements for you to know Aaron didn’t meet them. But like a jock strap that’s on backward, I’ll be anal retentive and tell you. Under Rule 520.10 New York will grant reciprocity to an applicant who has been practicing law in a reciprocating state, “for five of the preceding seven years.”

There is simply no way that Aaron could have been practicing law in Vermont for five years. He’d only been in prison for nine years, and, considering he was a full-time prisoner taking on-line courses in his spare time, it probably took him most of those nine years to complete his studies. Even if he was able to take a heavy caseload to accelerate his studies, he probably needed three years to complete the four-year college program then another two years to finish the three-year law curriculum. That’s five years. If he was working at optimum speed. Which means he could only have been practicing in Vermont for four years, not enough years for him to qualify for reciprocity in New York. So, no, Aaron probably wasn’t an attorney in Vermont and definitely wasn’t one in New York.

That’s what was wrong with For Life in just the first five minutes. Did the show get better from there? Well, I can honestly tell you that there were no more legal problems with the episode that I can write about.

In this column.

Next column… Well next column, I hope I can at least get us past the first commercial break.

The Law Is A Ass #458: The Human Torch Wants Just The Tax, Ma’am

The Law Is A Ass #458: The Human Torch Wants Just The Tax, Ma’am

I’m not an insurance company executive. I don’t even play one on TV. But if I were – or a probate judge or some similarly situated professional – and someone came to me to tell me that a Marvel hero, say Reed Richards, had died, my initial reaction would be, “Reed Richards? It’s an even-numbered week. That mean’s it’s Ben Grimm’s turn to die.”

In 2015, forces beyond their control killed the Fantastic Four. No, not the cosmic forces behind the latest version of Secret Wars. That was just the story where the FF died, not the forces that killed them. Said forces were higher ups at Marvel who decided if Fox wouldn’t give the film rights for the Fantastic Four back to Marvel Studios, then Marvel Comics shouldn’t publish a Fantastic Four comic and give free publicity to a competing studio’s movies. So at the end of the Secret Wars story line, Reed (Mr. Fantastic) Richards, Sue (Invisible Woman) Richards, and their children all died.

No, of course they didn’t die. But everyone including Johnny (The Human Torch) Storm and Ben (The Thing) Grimm thought they had died. Someone even had them declared legally dead, because in Uncanny Avengers (2017) #28, a lawyer named Harris Hutchley told Johnny that he had inherited Reed’s $5,196,353,518.41 estate.

Which, like a sleep over camp bed, is pure bunk.

Reed and Sue lived, and Johnny lives, in New York City, so that means the laws of New York would cover Reed’s estate. New York Estates, Powers and Trusts Law § 2-1.7 reads, “A person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed, in any action or proceeding involving any property of such person, contractual or property rights contingent upon his or her death or the administration of his or her estate, to have died three years after the date such unexplained absence commenced, or on such earlier date as clear and convincing evidence establishes is the most probable date of death.”

Which means, in simpler terms and with far fewer commas, that after three years of Reed and Sue being missing, a court could declare them dead.

Reed and Sue’s “death” happened in Uncanny Avengers (2015) #4, which came out in January of 2016. Johnny was informed he had inherited the estate in Uncanny Avengers (2017) #28, which came out in October of 2017. Now I may have been bad at math, but I wasn’t so bad that I can’t count to one and one-half years. I was even good enough to know that’s only half of the time the statute requires before a declaration of death should be made. And that’s one and one-half years of our real-world time. One and one-half of our years is probably just a weekend in Marvel time; maybe a Labor Day weekend. But far less time than the statute requires.

In the interests of full disclosure, I must add that the statute also says, “The fact that such person was exposed to a specific peril of death may be a sufficient basis for determining at any time after such exposure that he or she died less than three years after the date his or her absence commenced.” Surely said paragraph would apply to people who tick off Dr. Doom, Annihilus, or even Paste-Pot Pete on a weekly basis. No, I think not.

As I said earlier in this column, if I were an insurance executive or a probate judge in the Marvel Universe and someone came to me to say some Marvel super hero had disappeared and should be declared legally dead, I’d say, “Not so fast.” Let’s face it, “dead” heroes in the Marvel Universe come back so often you’d think Jesus was offering a Lazarus special at a Costco kiosk. Reed Richards himself died in Fantastic Four (1993) #381 only to return in Fantastic Four (1995) #407. And let’s not forget the original “Heroes Reborn” incident. (Yes, let’s all forget that, please. —Ed.)

The point being, legal officials in the Marvel Universe have seen people die and return to life so often, I don’t think any of them would be willing to have a Marvel hero declared legally dead just because someone asked. There’s a lot of paperwork and court hearings involved in declaring a person legally dead. There’s even more of that involved in declaring a person not-dead. After all, a judge who distributed probate assets for some Marvel character who was presumed dead would have to figure out how to get those assets back to the original owner after that character invariably came back in a few issues. At the very least, I think the legal profession would wait the full three years before declaring a Marvel character dead, not a year and a half.

Even if Reed had been declared legally dead, I seriously doubt that his estate, which had to be long and complicated, would have been completely probated in only a year and one-half. It took almost that long for my mother’s estate to be probated, and it was about as complicated as a glass of water.

But in this story, Reed and Sue were declared legally dead faster than Quicksilver can play the Minute Waltz and Johnny inherited. Only to learn that he had to pay something called the “business and opportunity tax.”

The what now?

I’ve heard of the income tax. I’ve heard of the sales tax. I’ve even heard of the marza tax. But I’ve never heard of the business and opportunity tax.

Neither has Google or Wikipedia.

That doesn’t mean that it doesn’t exist. It only means that my quick internet searches didn’t find any taxes with that name. Not in the USA or any of its component states. Moreover

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, the concept of Johnny owing any tax on the money he inherited is dubious at best. After all, if death isn’t certain in the Marvel Universe, why should taxes be?

While some states have what’s called an inheritance tax that require the legatee to pay taxes on what was inherited, New York and the federal government don’t have an inheritance tax. They have an estate tax. With an estate tax, the estate, not the legatee, pays the tax out of the estate proceeds. That means Reed’s estate, not Johnny, would have paid the taxes then Johnny would have inherited whatever was left after the estate tax was paid tax free.

Oh, Johnny will pay income taxes on his personal income from Reed’s various patents and holdings. But those will be due weeks or months down the road

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, not the same day he inherited.

Earlier I said I didn’t know what a business and opportunity tax was. If any of you know what it is, let me know. Not just because, even at this late stage in my life, I like learning new things, but for an even better reason. If the business and opportunity tax actually exists, it’s just one more reason for me to be happy I’m retired.

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

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

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

You may not remember Bluff City Law

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

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

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

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

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

They had no follow up witnesses!

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

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

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

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

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

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

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

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

So, yay! Happy ending.

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

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

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

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

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

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

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

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

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

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

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

The “it” in this case is The Defenders Vol. 5 #6, a story which, despite it’s cover billing as “Kingpins of New York” Part 1, was actually a continuation of events that started in The Defenders Vol 5 #1. In order that we can discuss “Kingpins of New York” part 1

, I need to catch you up on what happened before part 1. (Sigh, nowadays comic book stories are about as linear as an EKG.)

Starting in issue #1 of The Defenders Vol 5, the Defenders – Daredevil

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Where New York probably could prosecute Dr. Bechley is under one of the Aggravated Sexual Abuse crimes

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

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

No.

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

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

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

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

Secret Empire #10 variant cover

The Law Is A Ass #454: Captain America Says Intern Stage Right

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

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

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

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

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

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

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

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

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

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

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

So if the government was required to release the Inhumans – and it was by cases such as Ex parte Endo – which said the US government could not continue to inter a Japanese citizen who was loyal to the government – it wasn’t very nice of the government

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, if not downright illegal, to coerce the Inhumans to sign a release from liability before they could get a release from custody.

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

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

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

The Law Is A Ass #456: Supergirl Contracted Stupidity

The Law Is A Ass #453: Supergirl Contracted Stupidity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Which left me with only one alternative. The CatCo employees all signed new contracts willingly and with full knowledge that CatCo was about to be sold to Andrea Rojas

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, then they all forgot what they had done. And if that’s the case, why did Andrea fight so hard to keep them? Seems to me that people that stupid aren’t capable of reading the news, let alone writing it.

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

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

When is a person not a person?

No, not when they are ajar.

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

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

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

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

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

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

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

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

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

No

, if Congress wants to deport mutants, it must first agree that mutants are humans. Are people. Just people who happen to be different from the people in power. Which is why the people in power want to deport them in the first place; they’re different.

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

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

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

Night of the Skulls

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

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, 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.