Category: The Law Is A Ass

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The Law is a Ass #463: Sherlock Takes the Law for 2000

What do I have to say about a Sherlock Holmes story that’s hard to swallow? That’s alimentary, my dear Watson. I say:

The Adventure of the Innocent Murderess,” the June 30, 1947 episode of the radio show The New Adventures of Sherlock Holmes, was a gripping tale of murder and intrigue. Gripping because it was a fevered mess.

The episode involved Igoru Priscop, an official of the People’s Party of the European country of Grotznia, a fictional country that, like most fictional European countries, was smaller than Liechtenstein but bigger than a bread box. The People’s Party of Grotznia had been deposed by the Royalists. Now the International Committee of Power was meeting in the Hague to decide whether the Royalists or the People’s Party were the rightful rulers of Grotznia. Where did The International Committee of Power meet, the International House of Pancakes?

Priscop was in London to meet with exiled leaders of the People’s Party. Because Royalists dominated the Grotznian, Priscop had to keep his presence in London a secret. Sherlock Holmes agreed to shelter him in 221b Baker Street.

While hiding in Baker Street, Priscop ordered some wine. After it was delivered, Priscop proceeded to drink it. While he did, tragedy struck. Tragedy and a bullet. A young woman stormed into Holmes’s flat and shot Priscop. Priscop was dead.

Shortly thereafter, the Hague ruled the People’s Party was always the rightful government of Grotznia. Because Priscop was dead, Carlo Tarfush of the People’s Party became the Grotznian ambassador to England. Tarfush’s fiancée, Ladri Mikelto was the young woman who shot Priscop, which, we learned later, she did to insure her fiancé would become ambassador.

During Ladri’s trial, defense counsel produced evidence that Priscop had died of cyanide poisoning, which had gone undetected, because everyone assumed he died of gunshots so didn’t look for poison. (Or so the story said. I can’t think of a way to explain the unprofessional gaff of a coroner who didn’t perform a complete autopsy. Seems a little slipshod tomb me.) Anyway, Ladri was found not guilty.

After the trial, Tarfush challenged Holmes to discover the real murderer or become the laughing stock of England. (By the way, what is a laughing stock anyway, a soup base prepared from hyena meat?)

Holmes tested a wine stain left in his flat and found it contained cyanide. No one could have doctored the wine after it was delivered, so he tracked down the boy who delivered the wine. The delivery boy told Holmes that a woman, one the boy later identified as Ladri, approached him and offered to buy him a cake in a nearby tea shop. Holmes deduced that while there Ladri switched the original wine bottle for the one she had doctored with cyanide.

Holmes confronted Ladri with his proofs. She freely admitted her guilt. Then she gloated that under England’s double jeopardy law, she couldn’t be tried for murdering Priscop a second time.

Holmes brooded and thought and read. Then he had the solution to the problem.

At a formal party in the embassy, Holmes accused Ladri. He reminded everyone that the Hague had ruled the People’s Party was always the rightful ruler of Grotznia. So when he and Watson were harboring Priscop, their lodgings at 221b Baker Street became the true Grotznian embassy. Holmes also pointed out that embassies are extra-territorial and anyone in the Grotznian embassy was on Grotznian soil, not British soil. So any crime committed in the embassy was subject to Grotznian law, not British law. And, as Grotznia didn’t recognize double jeopardy, Ladri could be tried for murder a second time in Grotznia.

But when Ladri switched wine bottles, she was in a tea shop not in 221b Baker Street. So when she committed her crime, she wasn’t in the Grotznian embassy, she was firmly on British soil. After all, can anything be more firmly British than a tea shop? That means British law and it’s annoying double jeopardy rule would apply to her crime. You may wonder, was Holmes correct. Or was he talking through his deerstalker?

Despite this apparent flaw, I can think of a way to get Holmes out of this Inver-mess he was cloaked in. Two, actually, and I won’t even charge him extra for the second one. Sherlock-y for him that I happened along.

Yes, Ladri switched the wine bottles in a tea shop, but she performed another key part of her plan in 221b Baker Street, shooting Priscop. Ladri shot Priscop to obscure the cause of death and keep the coroner from checking for poison. If the police knew Priscop was poisoned, they would realize the poison came from the wine bottle and trace the poison back to her. So, the shooting was a key part of her plan, both because it kept the police from looking for poison and because it set up her double jeopardy plot and the shooting was committed in 221b.

Ladri could be tried in any jurisdiction where an important step of her murder occurred. In England, where the tea shop was, or in Grotznia, where the embassy was. Grotznia did have jurisdiction over her case, including its law not recognizing double jeopardy.

Remember I said I had two ways out for Holmes? I do. The first is the dual sovereignty argument you just read. The second is that Ladri couldn’t invoke double jeopardy, because it didn’t apply in her case.

Ladri was tried for murdering Priscop by shooting him. She was never tried for poisoning him. Poisoning Priscop and shooting Priscop were two separate and distinct acts. Double jeopardy wouldn’t preclude her second trial, because criminal prosecutions put a person on trail for what act the person committed, not for the crime’s name. Let’s look at a hypothetical.

Suppose a man commits a robbery and then later robs the same victim second time. The man is tried for the first robbery and acquitted. In that scenario, double jeopardy would not prevent that man from being tried and convicted of that second robbery, because the man wouldn’t have been tried for the same offense twice. Rather he’d be tried for two different offenses both of which happened to violate the same law. The crimes would have the same name. The victim would even have the same name. But the two crimes were different acts.

It would be folly for any court to rule that once a person was acquitted of a robbery, that person could never be tried for any other robbery in the future. Judges aren’t paid with Monopoly money, so wouldn’t give out that kind of a Get-Out-Of-Jail-Free Card.

In the same way, Ladri’s poisoning Priscop with wine was a completely separate and distinct criminal act than was her act of shooting Priscop. Yes, the name of the crime and the name of the victim would be the same in both trials, but the two acts were wholly distinct and she could be tried for each separately irrespective of the results the first trial.

In Ashe v. Swenson, the Supreme Court established a double jeopardy test that could apply here: In a subsequent trial, would the prosecution have to prove any of the same facts already proven in the first trial which resulted in an acquittal. If yes, then double jeopardy would bar the prosecution. If the prosecution did not have to relitigate any of the facts from the first trial, double jeopardy would not bar prosecution.

In Ladri’s second trial, the Crown would not have to introduce any evidence about her shooting Priscop. It could secure a conviction solely with the evidence of how she doctored the wine and poisoned Priscop.

Leastwise, that’s how it would work in the United States. I’m not completely familiar with how double jeopardy works in British law. But it would be pretty stupid of them to use an anal interpretation of double jeopardy that centered solely on the name of the crime charged and not the nature of the criminal acts being charged.

Some might say such a legal analysis was ill-advised. Others might say it was ill-ementary.

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The Law Is A Ass #462: I Parole My Eyes at the Huntress

Why was she there, in the first place?

Maria Bertinelli was convicted in Gotham City. So why was she in Blackgate Penitentiary? I thought all the criminals from Gotham City were sent to Arkham Asylum. Even the ones that clearly aren’t insane, such as The Penguin.

After her husband mob boss Frank Bertinelli was murdered, Maria Bertinelli took over his mob boss activities. Eventually Batgirl and the Birds of Prey caught Maria and, in Batgirl and the Birds of Prey #6, Bird of Prey member The Huntress turned Maria over to the police. Which probably made Huntress’s Christmas dinner with the family a little awkward, given that The Huntress was also Maria Bertinelli’s daughter, Helena.

Maria was convicted of “running a criminal enterprise” and sentenced to Blackgate Penitentiary for six years. Six years for a mob boss and reputed murderer? Fred Astaire was elephantine on his feet compared to this sentence. Now, after serving “a year and change” Maria’s up for parole. First a six-year sentence then parole eligibility after serving twenty percent of her sentence? Is the whole Gotham City penal system designed to give Batman job security?

Maria subpoenaed Helena to testify as a character witness in the parole hearing. That was something of a tricky proposition for Helena, considering that Maria, like an actress who wasn’t cast in the play, has no character.

But never let it be said that a heroine like Huntress passed up a civic obligation. After she got her subpoena, Helena went to the Gotham City Courthouse for her mother’s parole hearing.

Wait! Helena went where for the hearing?

Now, don’t get ahead of me. If you’re thinking Maria was convicted of felonies, so she wouldn’t be in city court, she’d be in a county court— good for you, you were paying attention to my old columns. But while you’re right that Maria’s parole hearing shouldn’t have been in the Gotham City Court, you’re right for the wrong reason. Maria’s parole hearing shouldn’t have been in Gotham City Court, because it shouldn’t have been in any court. You see in…

(Wait, Gotham City’s still in southern New Jersey, isn’t it? It didn’t move during Flashpoint or Rebirth or Crisis on Infinite Reboots did it?)

…in New Jersey, the court’s aren’t responsible for parole, the New Jersey State Parole Board is. Moreover, courts don’t hold hearings to determine whether an inmate should be granted a parole, the State Parole Board’s Division of Release does. Indeed, Division of Release’s web page says its, “primary duty… is to evaluate and assess each of New Jersey’s adult incarcerated inmates, and determine their eligibility and appropriateness for parole release.”

(Speaking of eligibility, under New Jersey law an inmate isn’t eligible for parole until the inmate has served one-third of his or her sentence. On a six-year sentence, one-third would be two years. So I was correct a “year and change” meant Maria was up for parole too early; unless “change” is slang for an entire year.)

The regulations for the Division of Release state that parole hearings are held before two members of the Parole Board, not before the judge who passed sentence. Maria’s hearing shouldn’t have been in Gotham City Court, it should have been in some parole hearing room in Blackgate. (See? Right for the wrong reason.)

Judge Watson denied Maria’s parole. No problem there. Maria didn’t seem repentant and wasn’t parole eligible anyway. I did have a problem with what the judge did next. He ruled that Maria be transferred to Arkham Asylum “to be treated for her criminal insanity.”

Judges can’t just do that, declare someone insane and order them into a civil commitment in an asylum. There has to be a hearing to determine the defendant’s mental status first.

This hearing would require expert witnesses to testify why they believed the defendant was mentally ill and needed to be committed. Judge Watson couldn’t commit Maria on his own motion and without any evidence by tacking it onto the end of a parole hearing. No judge would do something that blatantly wrong unless the judge was on the…

Oh, Judge Watson was on the take, wasn’t he? The super villain the Calculator needed to free Maria as part of his master plan and calculated it would be easier to break her out of Arkham than Blackgate. (Considering the frequency with which Arkham’s patients leave without leave, that wasn’t a bad calculation.) Calculator bribed Judge Watson to move Maria to Arkham, and by the end of the issue, Calculator had broken Maria out of Arkham.

So what Judge Watson did was wrong. No, not accepting the bribe. Well, yes, accepting the bribe was wrong, but Judge Watson’s bigger mistake was in moving Maria to Arkham in such a blatantly improper and illegal manner. When you’re on the take, you shouldn’t do what you were paid to do in a way that makes it obvious that you were paid to do it. It tends to lead to messy questions. And smart aleck columns.

This brings us back to my original question, why was Maria in Blackgate in the first place? If the story needed her to be in Arkham, why didn’t Judge Watson just do what every other judge in Gotham does, send her to Arkham with all the other criminals? Then Maria would already have been in Arkham and none of us would have had to read that whole silly parole hearing scene.

Unless… Hey, do you suppose Judge Watson was looking out for me, because he knew I’d been needing a column topic right about now?

Green Arrow #33 (2016) cover by Mike Grell
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The Law is a Ass #461: Green Arrow’s Witness Complication Program

I needed a quickie.

I meant, to get back into the swim of things after a couple of out-of-town trips, many stints of babysitting the grandkids (including one in which my wife and I stayed in their house for several days while their parents were on an out-of-town trip), and one brief, mild fling with COVID-19 kept me from writing columns for the past several months, I needed a column I could write quickly. Green Arrow #33 (2017) fit the bill perfectly.

It came out half a decade ago. That’s longer than the half-life of my memory. Meaning, I don’t remember it well enough to write a detailed recap. That should help speed things up.
Actually, to start this recap I have to go back even farther. Back to Green Arrow #2 (2016) when Green Arrow was fighting the Ninth Circle, a global bank which loans out money to criminals so they can do things like build secret bases in extinct volcanoes, buy piranhas by the Costco load or launch satellites with goyim space lasers. (Hey, the Ninth Circle is evil, you think it would have problems funding anti-Semites?) Meanwhile in the same issue, Oliver (Green Arrow) Queen’s secretary, Wendy Poole, died.

Only she didn’t. Die, that is. She came back. No, not in the typical the-dead-comes-back-to-life comic book cliché kind of way. She came back in the, the-bad-guys-kidnap-her-make-it-look-like-she’s-dead-and-frame-the-hero-for-her-murder comic book cliché kind of way. So Oliver Queen was arrested for Wendy Poole’s murder.

Oliver Queen posted bail. Than skipped bail, leaving town so that Green Arrow could travel all over the country teaming up with other members of the Justice League to regain their trust and take out the local Ninth Circle franchises on the other heroes’ home towns.

This I didn’t understand. Green Arrow has to regain the JLA’s trust? The JLA wouldn’t believe Green Arrow had been framed and would think he had turned murderer? Who on the JLA hasn’t been framed for a murder by some criminal? Hell, several of them probably had it happen to them earlier that same week.

Anyway, after DC published enough issues of Green Arrow traveling around the country to fill out a respectable trade paperback collection, Ollie returned to Seattle. Where he still faced trial for whacking Wendy.

Which brings us up to where we started Green Arrow #33 (2017) because that’s the issue where Kate Spencer, Ollie’s lawyer, learned that Wendy Poole was actually alive. And for the first time in her representation of Oliver Queen, Kate saw some hope. I wasn’t a high-priced defense attorney full of them fancy tricks you see on TV, but even I, a lowly public defender, know you can’t prosecute someone for murder when the supposed victim is alive and appears in court.

There was only one flaw in Kate’s plan. Wendy, who is living with her father, was traumatized by her experience. Father told Kate that he and Wendy couldn’t help Ollie, because whoever took her will “come after her if they know she’s still alive.” If they know? How could they not know? Haven’t they seen she was missing? Even Barney Fife checked Mayberry’s holding cells from time to time.

Kate went to Ollie, I assume to give him the good news and have him help convince his secretary to come forward. Instead, Ollie also forbade Kate from revealing that Wendy was alive to get him out of the predicament. “She’s gone through hell because of me.” Such nobility. It endeared Ollie to the reader but ticked off his lawyer no end. Kate stomped off think Ollie had won the noble sheesh prize.

Is that how it would work? If Ollie told Kate that she couldn’t call Wendy as a witness, couldn’t Kate call her anyway? No. And here comes maybe the quickest legal analysis I’ve ever done in the history of this column.

Lawyers are supposed to represent their clients in the manner in which their clients want to be represented. Unless the client wants the lawyer to do something that’s against the law, like put on perjured testimony or shoot the eyewitness between the “I” and the “do,” lawyers are ethically bound to represent their clients the way the clients want that representation to go.

If a lawyer wants to put on an insanity defense but the client says no, insanity cannot be presented. If the lawyer wants to call the not-really-dead murder victim to the stand to prove the client didn’t kill the victim and the client says no, it’s no. That’s the way it is. Sometimes the attorneys who don’t represent themselves have fools for clients.

So what happened to Ollie? Did he go to trial and get convicted of murder because of his nobility? No. After all, this was issue 33 of a Green Arrow series that lasted 50 issues. It would have been kind of hard to have the series go that long if the main character was convicted of murder in issue #34 and spent the next 15 issues in the slammer.

How did Ollie not get convicted? I don’t know. I told you at the beginning of this column that I didn’t remember all the details of this story line. Do you think my memory has gotten better after several more paragraphs? Law schools have a phrase lawyers can employ in cross-examination, “Is your memory like a fine wine? Does it improve with age?” In my case, “My memory does not get better with age,” is a fine whine.

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

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, 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.