Category: The Law Is A Ass

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

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?

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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.”

The Law Is A Ass #441: Flash’s Step-Mom Is Tele-pathetic

The Law Is A Ass

Do I look like a cow to you?

I spent four columns last year – the four when we were playing in the minefield that was the “The Trial of the Flash” episode of The Flash – telling you that Central City district attorney Cecile Horton was really bad at her job. And now, thanks to the March 12, 2019 episode “Failure is an Orphan,” I have to chew that cud again.

Central City district attorney Cecile Horton is really bad at her job. But, to be fair, when it comes to job performance, Cecile’s husband, detective Joe West of the Central City Police Department, is about as sharp as a bag of Nerf Balls.

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THE LAW IS A ASS Installment # 439: Bouncing Ideas Off Superman

In the immortal words of Dorothy Parker… Err, maybe we shouldn’t go there.

Sorry it’s been a while. September until May constitutes a while, cause it’s a bit longer than a little while. Between out of town comic book conventions, trips to Chicago, family vacations, trips to Chicago, holidays, even more trips to Chicago – including a lengthy one to help my daughter when, first, she pulled a rib muscle and couldn’t lift her two-year-old and another lengthy one when she gave birth of my grandson – and various and sundry other sundries that I can’t talk about quite yet; I just haven’t had much time to write a column.

But I’m back with a vengeance. The vengeance being what the fine and patient folks at ComicMix will demand if I go this long between columns again. So, as the Prufrock is in the puttin’ words together; “let us go then, you and I…”

…And then they throw their guns at him.

Seriously, how many times did we see that scene play out in the Adventures of Superman TV show with George Reeves? Superman confronts some two-bit thugs – the show’s budget didn’t allow them to spend more than twenty-five cents for extras – the thugs would shoot at Superman, and the bullets would bounce off him harmlessly. Then, after the bad guys emptied their guns at Superman without effect, they’d throw their guns at him believing guns thrown at maybe 50 mph will do Superman harm when projectiles moving at 1,067 feet per second had already bounced like their last rent check.

An oft-repeated scenario which prompted one Ron Hartley to tweet me with a question: under this fact pattern, would the criminals be guilty of a crime? Not some silly low-grade crime like illegally discharging a firearm or an excessive noise violation, are they guilty of a major crime?

To which I answer, it depends. No, not because lawyers are constitutionally incapable of answering a yes or no question “yes” or “no.” I answer it depends, because the answer actually does depend on a few variables.

First, let’s zero in on of what crime might the criminals be guilty? Not murder. Superman didn’t die. But by firing their guns the criminals did commit an act which, if successful, would have resulted in killing Superman. That’s attempted murder. Then there’s some type of assault. What type? As a bar-be-cue chef who’s fond of Shakespeare might say, “Ah, there’s the rub.”

I turn to the Model Penal Code, a document written by the American Law Institute in an effort to update and unify the penal laws throughout the country. Toward that end, the MPC contains model statutes which define crimes and penalties. Since it’s first publication in 1962, more than half the states have modified their criminal codes to incorporate language of the MPC in their penal codes. So the MPC is about as close to a universal criminal law of the land as we’re likely to get.

The MPC defines aggravated assault as causing, or attempting to cause bodily harm to another with a deadly weapon. Note that attempting to cause part, that means the criminal doesn’t have to cause actual injury, the criminal can merely attempt to cause injury with a deadly weapon. So if a criminal shoots at you and misses, you’re lucky. The criminal, not so much. The criminal attempted to cause physical injury with a deadly weapon, and so is guilty of aggravated assault, even though you’re peachier than a peach cobbler washed down with peach schnapps.

To get back to our question, if criminals shoot at Superman and the bullets bounce off him, the criminals still attempted to cause bodily injury or death. So they would be guilty of aggravated assault and attempted murder. Right?

To which I say, not so fast there, Speedy Gonzalez. Like a man who leapt into a brick wall, you’re jumping to contusions.

There’s one additional matter that must be considered. We must also answer the question did the criminals know the bullets would bounce off of Superman when they shot at him?

In the law, an attempt crime – such as the attempted murders or aggravated assaults we’ve been talking about – is what the law considers a specific intent crime. In order to be guilty of an attempt, the criminal must have specifically intended to commit the crime he or she was attempting. In our Superman question, to be guilty of either attempt crime, the criminals must have either intended to kill Superman or to cause him physical harm when they shot at him.

Now we know that killing Superman with bullets is impossible, they bounce off him like raindrops on roses. (Don’t complicate the matter with hypothetical Kryptonite or magic bullets, we’re not talking about the Kennedy assassination.) So killing Superman with bullets is impossible. The law recognizes the possibility of an impossibility defense to attempt crimes. If a criminal is attempting to commit a crime that is impossible, then the criminal could not have intended a specific result, because that result is impossible.

So there you are, if the criminals were attempting the impossible crime of shooting Superman, then they can’t be guilty of attempted murder or aggravated assault. Right?

Of course, not right. Not only can’t the law can’t answer a yes or no questions “yes” or “no,” it can’t even answer it with a definite maybe. It’s got to throw in a few depends along with a perhaps or two to muddy up the maybe.

Let’s look at a classic example law schools use to explain this conundrum. A man – the criminal – shoots another man – the victim. But what if the victim was dead at the time the criminal shot him? Obviously, it’s impossible to kill a man who’s already dead. So the criminal can’t be guilty of murder. But can the criminal be guilty of attempted murder, or does the impossibility defense come into play?

The answer to that question depends on what the criminal knew at the time he shot the dead man. If the criminal knew the man was dead, then the criminal knew killing the victim was impossible. The criminal couldn’t have specifically intended to kill the victim, so the impossibility defense would apply, because the impossibility negated the defendant’s specific intent.

But what if the defendant didn’t know the victim was already dead? What if the criminal believed the victim was alive when he shot and did intend to kill the victim? Then the impossibility defense doesn’t apply.

The law reasons it out like this, if the criminal attempts an impossible crime but doesn’t know it’s impossible, then the defendant would have been successful in the crime, had the facts been as the defendant believed them to be. So, because the defendant intended to cause a specific result, the defendant is still guilty of the attempt, even though the crime attempted turned out to be impossible. If our hypothetical would-be murdered cum corpse abuser didn’t know his intended victim was already dead, he would be guilty of attempted murder.

Or, to get back to the original question, if the crooks shot at Superman knowing the bullets would bounce off of him, they might be guilty of littering for spreading spent bullets all over the place, but they wouldn’t be guilty of attempted murder or aggravated assault. They knew murder and assault was impossible so didn’t specifically intend either. If, on the other hand, the mugs didn’t know the bullets would bounce off Superman and believed the bullets either kill or injure Superman, then they’re not only stupid, they would also be guilty of attempted murder and aggravated assault.
Is it any wonder that I retired from the law? After almost three decades in that morass of maybes and trying to make sense of laws that have more depends in them than a nursing home, my hair turned whiter than snow on the Night King’s butt.

The Law Is A Ass #438: Stu Went Looking For The Old Bailey

TV or, not TV, that is the question. The answer is TV.

I know, I’ve spent the past five columns writing about a TV show and not comic books, and also four out of the five columns before that doing the same. But sometimes these TV shows are just asking for it.

Like “By His Own Verdict,” the November 15, 1963 episode of 77 Sunset Strip. Okay, most of us weren’t even born when this episode first aired. And those of us who were – like, gulp, me – couldn’t shave yet. But the law involved in the story hasn’t changed in the almost fifty-five years since the episode aired. In fact, it’s been the law since 1910, which is before all of us were born. So the topic is still topical, even if it’s not timely.

Joseph Cotton played Arnold Buhler, a criminal defense attorney who was about to retire. His last case was defending Max Dent, a petty criminal played by Nick Adams who was on trial for murder. Right after the not guilty verdict, Max verified that because of the Double Jeopardy Clause of the 5th Amendment, he couldn’t be tried again for the murder. Then he told Arnold that he was guilty; he killed the man.

All of this took place in the teaser, before the opening credits. In my day, people wrote compressed stories that weren’t being padded for trade paperbacks or season-long story arcs, things actually happened. And they happened faster than a frat boy’s Friday night dash to the toilet bowl.

Arnold was upset. He had prided himself on being able to tell whether a prospective client was guilty or innocent and only representing the ones who were innocent. Max not only blemished that record but that also meant Arnold was complicit in a miscarriage of justice. So Arnold hired private investigator Stu Bailey to investigate and try to determine whether Max was truly guilty.

Stu took the case but without the usual aid of the other members of the 77 Sunset Strip team. This was an episode for the 6th season, after Jack Webb took over as producer, decided the show needed to be film noir rather than light-hearted action adventure show, and jettisoned everything that made 77 Sunset Strip 77 Sunset Strip except for Efrem Zimbalist, Jr. and the title. And the title didn’t even make sense any more. Stu’s office wasn’t on the Sunset Strip, it was in the Bradbury Building in downtown Los Angeles.

While Stu was helping his friend from America’s Old Bailey, we viewers were hoping what Stu would really do was find the old Bailey. Alas and alack, that was not to be. Instead of classic 77 Sunset Strip, we got a muddled story that suffered from a loss and a lack of legal accuracy.

Before Stu had finished his investigation, Arnold began, for want of a better word, stalking Max. No, not for want of a better word; there is no better word. Arnold was stalking Max. Following him around. Bothering him. And finally, hinting that he wasn’t glad to see Max, that was a pistol in his pocket. Arnold told Max that while Max couldn’t be tried in a court of law again, he could be tried by Arnold. Arnold would be Max’s judge, jury. And executioner.

Meanwhile, Stu learned Max was as irredeemable as a book of expired Green Stamps. So, just in time for the fourth act, Arnold announced he had reached his final verdict and went looking for Max.

Arnold found Max in the train yards. Max ran. Arnold chased him, usually with his hand in his pocket where the gun was. While Arnold and Max were playing Hide and Seek, Stu and Marty Kline, the DA who prosecuted Max, were looking for Arnold to stop him from killing Max.

As the doctor in the Myanmar epilepsy ward said, that’s when the fit hit the Shan. Max, after pleading with Arnold to stay away to no effect, pulled out his own gun and shot Arnold. As Arnold lay dying in Stu’s arms, he explained that he had set the score right. Arnold goaded Max into killing him. But Arnold didn’t really have a gun, so Max couldn’t claim self-defense. Max had murdered Arnold. Now Max could be prosecuted for murder again, just a different murder.

Marty the DA lamented to Stu that Arnold wouldn’t get the result he had desired. As Arnold had provoked Max, the best they could do was prosecute Max for manslaughter, not murder.

Bob, the former public defender, lamented that self-defense law must not be on the curriculum in California. Because neither Arnold nor Marty had the slightest idea how it worked.

A person may defend himself when he has a reasonable belief that there is an imminent threat of physical harm to his person. In defending himself, the defender may use the same amount of force being used by person against whom the defender is defending himself. Max reasonably believed Arnold was chasing him with a gun and was going to kill him. That’s what those of us who know how self-defense actually works, call deadly force. Because Max reasonably believed Arnold was going to use deadly force, Max was entitled to use deadly force to defend himself against Arnold.

But, wait, Arnold didn’t have a gun, so he wasn’t going to use deadly force against Max. Doesn’t that disqualify Max from asserting self-defense? Do you really think I would have wasted all these column inches, if the answer to that were yes? If the person has a reasonable belief he is in danger of being killed, he may assert self-defense, even if he is, in fact, mistaken in that belief. Like I said, that’s been the law of the land since at least 1910. Probably longer.

In order to goad Max into killing him so that Max could be prosecuted for his murder, Arnold spent a good part of the episode convincing everyone, especially Max, he was going to kill Max. Max had a reasonable belief Arnold intended to kill him. Meaning Max had a right to use deadly force to defend himself, even though Arnold never actually intended to use deadly force. Max didn’t commit murder or even manslaughter. Max didn’t commit any crime at all. Nick Adams might have been guilty of overacting a bit, but Max, he was as innocent as Dr. Richard Kimble, Jason McCord, and all of Perry Mason’s clients. Combined. (Wow, I really have to kick this fixation on old TV shows.)

Arnold, you knew less about the law than a first year student at the worst law school in the country. And because of that, like Narcissus withering away by that pool of water, you died in vain.