Category: The Law Is A Ass

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #370: BATMAN EXERTS SOME PEERS PRESSURE

Batman_Gotham_Adventures_Vol_1_35So how was this even remotely fair?

First, Mark Filcher was on trial with a name like Filcher. Filcher? From the 16th Century word filch meaning “to appropriate furtively or casually?” Why didn’t Mark just change his name to I. Emma Thief and save us all a lot of trouble?

Second, the jury of Mr. Filcher’s peers included Bruce Wayne; billionaire playboy, corporate CEO, and phila… er, phila… er, yes, er, Good Deed Doer. I’m not saying it was unfair because a billionaire playboy and philanthropist wasn’t exactly a peer of career criminal Mark Filcher. (Although, truth be told, I’m not sure an actual peer is Bruce Wayne’s peer.) I’m saying it was unfair because, this being a Batman comic it should come as no surprise to you that Filcher was apprehended by Batman. And this should really come as no surprise to you; Bruce Wayne is Batman.

Seriously, how fair is it to have the guy who arrested you sitting on the jury which is deciding whether you’re guilty or not guilty of the crime that guy arrested you for?

(Please tell me I don’t actually have to answer that last question.)

Bruce Wayne had personal knowledge about the case. People with personal knowledge of a case aren’t supposed to sit on juries. They might decide the case based on their own knowledge of the case rather than the facts presented in evidence. In fact, that’s one of the standard questions that’s asked of prospective jurors, whether they’ve read news paper accounts or heard new stories about the case or have any personal knowledge about the case. It’s asked to keep people with personal knowledge of the case off the jury.

To be fair, Bruce did try to get off the jury; with an attempt that was more half-hearted than the Tin Woodsman without his testimonial.

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Question: “And is there any reason you shouldn’t be on this jury?” Answer: “Yes. I’m Batman.”

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That was fine as far as it went. After all, Bruce was under oath and couldn’t lie, and his being Batman was both the truth and a valid reason why he shouldn’t be on the jury. Unfortunately, as far as it went was about as far as Usian Bolt went on that Segway. After the judge admonished Bruce to refrain from further jokes, Bruce ended up on the jury.

It would have been easy for Bruce to get off the jury. He could have said Wayne Enterprises’s business would suffer were he to serve on the jury instead of being its CEO. I’ve seen this excuse used many times by people who want to get off a jury. And successfully. Okay usually by rich people who contributed to the judge’s campaign. But Bruce is certainly rich enough. So, unless he contributed to the trial judge’s opponent, he would have qualified.

Or Bruce could have said, quite truthfully, “I saw Batman arresting Mr. Filcher.” Everyone would assumed Bruce was standing on the street looking up when Batman arrested Filcher and saw what happened. But because he had seen the arrest and had some personal knowledge of the event, he would have been excused from the jury.

Or Bruce could have said, again quite truthfully, that Batman saved his life on more than on occasion, so he tends to believe Batman doesn’t make mistakes. (Remember this is the Batman from Batman the Animated Series we’re talking about, not the sociopathic buffoon who’s been wearing the costume since the New 52 started. It’s possible people would believe animated Batman was incapable of mistakes.) Bruce could have said he believed anyone Batman arrested was probably guilty so his ability to be fair and impartial toward Mr. Filcher would be compromised. Quite truthful. And it would have gotten him bounced from the jury faster than asking, “Can I plug in the electric chair?”

Any of those responses would have gotten Bruce excluded from the jury. Unlike Bruce Wayne or Wile E. Coyote, I am not a super genius. So if I was smart enough to figure out how Bruce could have gotten off Filcher’s jury, what’s Bruce’s excuse for not being excused?

Bruce didn’t try to get off the jury so heard the case. Probably fortunate for justice, but unfortunate for Mr. Filcher. Or any concept of due process. The jury’s initial vote was 11-1 for acquittal. But Bruce knew Filcher was guilty. So in a reverse 12 Angry Men, he filibustered until he was able to convince the other eleven to change their minds and vote 12 to 0 for conviction.

Bruce convinced the jury, in large part, because he established that Filcher lied about his alibi. The attempted kidnapping for which Filcher was being tried occurred in the Stovertown neighborhood of Gotham City at 6:00 p.m. Filcher claimed he was in the Kubrick District until 6:00 p.m. then drove to Templeville where he was arrested at 6:15. So he couldn’t have been in Stovertown to attempt the kidnapping. Bruce found a juror who lived in Kubrick and that juror said in rush hour traffic it would take forty minutes to get from Kubrick to Templeville. Filcher couldn’t have stayed in Kubrick until 6:00 then gotten to Templeville by 6:15, as he claimed. It was more likely that he left Kubrick at 5:00 – which was the last time anyone remembered seeing him in Kubrick – went to Stoverville, attempted the kidnapping, then fled to Templeville. I mention this to point out that personal knowledge of this type – how long it might take to drive from one part of town to another – is not impermissible in jury deliberations.

Jurors are allowed to bring personal knowledge of a general nature to deliberations. They’re not required to forget everything they know; although I swear some of the juries I had did just that. Jurors have general knowledge about things like what time the sun rises, when does Easter fall each year, and what is the airspeed velocity of an unladen swallow? Those sort of things, jurors can bring to and use in their deliberations. They just can’t have personal knowledge about the specific facts and details of the case they’re hearing.

I guess we’re supposed to be happy about Bruce staying on the jury, because he made sure the bad guy was actually convicted of the crime he actually committed. I wasn’t happy, because, as I said, Bruce should never have been on the jury. Defendants are entitled to juries that are fair and impartial, not juries that are, to be fair, partially partial.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #369

DAREDEVIL CAN TAKE THE STAND – FROM A LIBRARY

Because it had three stories in it, that’s why.

Yes, we’re playing Jeopardy. That’s the answer. And the correct question is, why did you write three columns about Daredevil v4 #15.1?

The third story in this extra-long volume with the screwy numbering – “Chasing the Devil” – featured a familiar scene. No, not the balcony scene from Romeo and Juliet– please tell me that scene is familiar to you and I didn’t need to go with the food fight from Animal House. Rather this is the familiar scene that ends the standard super hero-super villain fight scene.

In this version of the scene, Daredevil was fighting Diablo, the centuries-old master of alchemy who first appeared in Fantastic Four #30 and who, despite the fact that he is centuries-old and a master of alchemy, is a surprisingly second-rate super villain. Let’s face it, he appeared in the third story in this particular comic, a story that was only eight pages long. Considering that some of the story was set-up and some of it denouement, the actual number of pages devoted to the fight was three and one-half. So, no, we’re not talking an A-lister here. B-lister, anyone? C-lister? Let’s just say, Diablo would be suffering delusions of grandeur if he auditioned for Dancing With the Stars.

So after their mercifully brief fight, Daredevil tied Diablo up and left him hanging for the cops to find and arrest. The cops did find Diablo, did arrest him and, I assume, Diablo was prosecuted for his misdeeds. I can only assume, because we didn’t see the aftermath. Apparently, the story didn’t want to spend any more time with the loser villain, either.

However, assuming Diablo was prosecuted for his crimes, the fact that he was prosecuted should be ringing more bells than Quasimodo in the Westminster Concert Bell Choir. Because we have talked about this before. Masked super heroes catching criminals, leaving them for the cops to find, then walking – or swinging – away before the police have a chance to question them or get their statements. I’ve noted that without that an actual conversation with the super hero involved, the police wouldn’t have enough probable cause to arrest the bad guy in question, because they didn’t see the baddie committing any crime and the person who did was nowhere to be found.

And even if the police did arrest the bad guy, taking him to trial would be trickier than a Penn & Teller special. Under the Sixth Amendment’s Right of Confrontation, the defendant has the right to cross-examine the state’s witnesses. But the defendant wouldn’t be able to cross-examine a masked witness, because the defendant wouldn’t know who that witness was, so wouldn’t be able to question the witness about possible biases.

Masked super heroes wouldn’t be allowed to testify in court without revealing their secret identities, which they wouldn’t want to do. (If they wanted to reveal their secret identities, they wouldn’t wear masks. I mean, what’s the mask for other than keeping a secret identity secret? A bad case of hat hair?) So if the masked heroes don’t reveal their secret identities and aren’t allowed to testify, there would be no evidence against the bad guy and said bad guy would be found not guilty.

That’s the way it would usually go, in one of the average super hero scenarios. That’s not, however, the way it would have gone in Daredevil v4 #15.1. Because this story was smarter than the average super hero scenario.

It didn’t have Daredevil chance upon the super villain doing his super villainy by happenstance. No, it had Daredevil overhear a police radio broadcast that “a major drug deal involving ‘Diablo’ and a number of known offenders is under way at the Syracuse Salt Mines.” (Hey, I know there are operating salt mines underneath Cleveland, Ohio. Are there actually salt mines under New York City, too? Not a big deal, I just wondered.)

The police already knew that Diablo was around and dealing drugs. The police didn’t need Daredevil for the information about Diablo’s diabolic doings, they already had it. The story didn’t say how the police knew. Could have been an eyewitness account from another witness. Could have been a undercover narcotics officer report. Could have been a tip from the Morton Salt Girl. How they got the information doesn’t matter. What’s important is, they had it.

And because the police had the information, that means someone other than Daredevil – the someone who told the police about the drug deal in the salt mines in the first place – could have testified at Diablo’s trial and supplied the jury with the information it needed to convict Diablo.

Of course, considering Esteban Corazón de Ablo goes by the nom de guerre of Diablo, maybe not even that information was necessary. Get people on the jury people who know that Diablo means devil and it might be a short trial.

(“Ladies and Gentlemen of the jury, the defendant in this case goes by the name Diablo.”

“Guilty!”)

But even if the jury was conscientious and required more information than the defendant’s chosen nickname, whoever supplied the information to the police should have been enough information for a conviction. The police wouldn’t need Daredevil on the witness stand.

Tony Isabella https://en.wikipedia.org/wiki/Tony_Isabella once told me that whenever possible he’d have his super hero-super villain fights take place in highly public places before lots and lots of witnesses. That way there would be plenty of people around who could testify against the super villain, even if the super hero couldn’t. A wise practice. Prosecutors have enough trials and tribulations without extra trialing tribulations.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #368

DISMISSING A CASE WITH PREJUDICE IS INJUDICIOUS

First of all, when a lawyer gets a case dismissed with prejudice, that doesn’t mean it’s because the lawyer was the new, reconfigured Atticus Finch.

So what does “dismissed with prejudice” mean then? That’s the question I promised to answer last week, while discussing Daredevil v.4 #15.1, because a judge dismissed a criminal case against Matt Murdock’s client with prejudice. And here I am this week doing what I promised to do last week by answering the question.

Not all lawsuits end in a jury verdict. In fact, to tell the truth, most of them don’t. (Jeez, doing what I promised to do and telling the truth; that’s enough to get me kicked out of my lawyer in good standing status. If I were still a lawyer or ever had a good standing.) Most cases end long before a trial or a jury verdict. Many end with some sort of compromise deal being reached between the two parties. Either a settlement in a civil case or a plea bargain in a criminal case. Others end with one of the sides filing a motion to dismiss the case and the judge granting that motion. Still others end in other ways, but as we’re talking about motions to dismiss today, we won’t bother with those still other ways.

Either side can file a motion to dismiss, the plaintiffs or defendants in civil cases or the prosecutors or defendants in criminal cases. (Please note, in a lawsuit – both civil and criminal lawsuits – the party bringing the suit is the plaintiff. Plaintiffs in criminal cases are usually called prosecutors or the state, but they’re still the plaintiffs. For the sake of convenience, I’m going to use the term “plaintiff” to refer to both civil plaintiffs and prosecutors.) Usually one side files the motion to dismiss because there is a weakness in the plaintiff’s case. Plaintiffs, for example, might file a motion to buy some more time to develop their case. Defendants can file to dismiss, if they feel that the charging papers – either a civil complaint or a criminal indictment – fail to set forth an adequate case to present to a jury.

When a judge is presented with a motion to dismiss, the judge can either grant the motion or deny it. Most judges grant the motion to dismiss, if for no other reason than that it gets the case of the judge’s docket. Do judges like to get cases off their dockets? Does Sonny the Cuckoo Bird like Coco Puffs? If a judge grants the motion to dismiss, the judge can grant it in one of two ways. The judge can grant the motion with pride – judges do almost everything with pride – but either with or without prejudice.

Ah five paragraphs into the column and finally we’re reaching the Clara Peller part. You know, where the beef is.

If a judge grants a motion to dismiss without prejudice , that means that the plaintiff can file the case again in the future. If, however, the judge grants the motion to dismiss with prejudice, that means the plaintiff cannot file the case again. The plaintiff can appeal the judge’s dismissal with prejudice. But absent an appeals court overturning the dismissal with prejudice, the plaintiff is barred from ever filing that case in the future.

Common reasons for dismissing a case with prejudice include fraud on the part of the plaintiffs or the case being barred by the statute of limitations or the case being barred by res judicata because the plaintiffs brought the same matter to trial in an earlier case and lost. There are, of course more reasons. Lots more. (Seriously, you think there’s actually a legal principle that’s so simple it could be answered completely with only three examples? The law is large, it contains multitudes. And that’s just the tax code.)

In the Daredevil story, a murder charge against one Luiz Sifuentes was dismissed with prejudice, meaning the state of New York could not refile the same charges against Mr. Sifuentes in the future. Usually in criminal cases a case is dismissed with prejudice for one of a few reasons. If the defendant was already tried for the same charges and found not guilty, the defendant can’t be tried on those charges a second time because of the Double Jeopardy Clause of the Fifth Amendment. So if the state were to bring the same charges a second time and the trial court dismissed the case because of double jeopardy, that would be a dismissal with prejudice.

Another dismissal with prejudice would be if the state brought charges after the statute of limitations expired. In that case, the state would be barred from ever filing charges again, because of the statute of limitations.

Of if the defendant’s case were dismissed because the state didn’t bring the defendant to trial in compliance with the Speedy Trial clause of the Sixth Amendment that would also be a dismissal with prejudice, because the speedy trial violation would prevent the state from pursuing the charges in the future.

Those are some of the major reasons that a criminal case can be dismissed with prejudice. There are, naturally others. Multitudes, remember?

In the Sifuentes case, Sifuentes was charged with shooting a man to death in Central Park. Daredevil investigated the case and caught the two other people who were actually guilty of the crime. These two confessed to the murder after their fingerprints were found on the bullets in the cylinder of the murder weapon. They also admitted they didn’t know Luiz Sifuentes. So the judge dismissed the case against Sifuentes with prejudice, meaning that the state could never bring these charges against Mr. Sifuentes again.

That’s unlikely. The trial court wouldn’t want to do something which precluded the state from ever filing the charges again. What, for example, would happen if the other two defendants recanted their stories and said Sifuentes was also in on the murder? Or what if the state learned that the other two defendants were friends with Sifuentes and lied about not knowing him to get their friend out of trouble? In either scenario, the state would want to bring murder charges against Sifuentes again, but wouldn’t be able to do so, because the case had been dismissed with prejudice. So it’s not likely that the trial court would have granted Sifuentes’s motion to dismiss with prejudice, as it wouldn’t want to preclude the state from pursuing a case against Sifuentes, should new facts establishing Sifuentes’s actual guilt ever come to light.

What would probably have happened in the Sifuentes case is that the judge would have granted the motion to dismiss, based on the fact that Mr. Sifuentes appeared to be innocent of the charges. But it would have dismissed the case without prejudice. The state of New York would then have to decide whether it wanted to pursue a case against Sifuentes. If it believed that he was actually innocent of the crime, then it wouldn’t file the charges again and the matter would be over. But if, after further investigation, the State felt that Sifuentes was actually involved in the killing, it would file the charges against him a second time.

The trial court wouldn’t want to prejudge the state’s future ability to prosecute Mr. Sifuentes, so it wouldn’t grant a dismissal with prejudice. Oh and one more thing, don’t confuse prejudging with deciding which hybrid car to buy. Prius judging is entirely different.

The Law Is A Ass #367: Daredevil’s Work Ethic Actually Works For A Change

Daredevil Vol 4. #15.1Will the real Matt Murdock please stand up?

I have, in the past, detailed incidents where Matt Murdock, New York lawyer and secret identity of the super hero Daredevil, put the ick in legal ethics. I have, in fact, done more detailing than a guy prepping cars for the show room.

Then along came Daredevil v 4 #15.1 and its story “Worlds Collide.” It’s a story set so early in the career of Matt Murdock and Daredevil, that he and Foggy Nelson hadn’t even formed the law firm Nelson and Murdock yet. Matt was a first-year associate at the prestigious Manhattan law firm Hutchins & Wheeler. Was still wearing his original red and yellow costume. And, apparently, was so new to the practice of law that Matt hadn’t yet learned how easy it was to game the system.

On one of his first patrols as Daredevil found a gunshot victim lying dead in Central Park. He heard the elevated heartbeat of three men running away from the crime scene. He chased the closest of the three men, Luiz Sifeuntes, who threw the murder weapon away as he ran. Then Daredevil caught Sifuentes, tied him to a tree, and made an anonymous call to the police.

Sometime later, Hutchins & Wheeler took on Mr. Sifuentes’s case as part of its obligation to provide five thousand hours of pro bono work. Mr. Wheeler assigned the case to Matt.

When Matt talked with Sifuentes, his client said he was walking in the park and went to the crime scene after he heard gunshots. He saw the victim lying on the ground, saw the gun, and picked it up for no known reason other than the one we all know; that’s what innocent people in stories always do when they find dead bodies with recently-fired guns lying next to them. They pick up the furshlugginer gun and give the state what looks like an air-trite case against them. Seriously, this plot device has been used so often that I think complaining that it’s a cliché has become a cliché.

Matt realized he shouldn’t represent Sifuentes, as he was the person who captured Sifuentes in the first place, so he tried to get off the case. Which was the ethical thing to do, as Matt had reason to doubt his ability to be objective and represent his client zealously. But Wheeler wouldn’t let Matt quit. So Matt, who couldn’t reveal the true reason he wanted off the case – i.e. his secret identity – continued to represent his client as best he could. He filed a motion to dismiss the case during the pre-trial probable cause hearing. The grounds for the motion were that Sifuentes was captured by a vigilante who might not even testify so the state wouldn’t be able to make its case.

This was a very sound argument. As I’ve written in the past, when the heroes capture criminals but don’t stick around to supply evidence, the state has no witnesses who can testify as to the defendant’s guilt. Without Daredevil’s testimony, the state would, literally, have no witness who could put Sifuentes at the scene of the crime or in possession of the murder weapon. Judge Mandelbaum said she would take Matt’s argument under advisement and didn’t rule on it.

Meanwhile, the prosecutor, who realized there was a major weakness in her case, offered Matt the chance to plead his client to manslaughter in the second degree. Matt took the offer to his client, because, as he correctly stated, he had a legal obligation to present any plea offer to his client.

A lawyer does have the ethical obligation to present all plea offers to a client. Even ones the lawyer might think are a bad deal. The lawyer can tell the client that he feels the plea offer is a bad deal and advise the client to reject it. But the lawyer still has the legal obligation to present the offer to the client and let the client decide whether he wants to accept it.

Matt advised his client that the offer was a good deal, but only if he were guilty. Again a very ethical and proper way to act. The client decided to accept the offer, because he felt a guaranteed fifteen year sentence – with parole after ten years with good behavior – was better than risking a possible twenty-five year to life sentence should he risk a trial and be convicted of murder in the second degree.

That’s how Matt spent his days, representing Luiz Sifuentes. That’s also how he spent his nights, because at night Daredevil went looking for, and ultimately found the two men actually involved in the shooting.

The next morning, Judge Mandelbaum denied Matt’s motion. She ruled that when an arrest was made by a vigilante such as Daredevil the decision of whether to proceed with that case should be handled on a case-by-case basis. Each case must be examined on its own merits, rather than allow a blanket ruling that all defendants apprehended by masked super heroes should be dismissed. As Luis Sifuentes was found at the scene and his fingerprints were on the murder weapon, that was enough evidence to bind him over for trial. The trial could decide whether there was enough evidence to convict him, should the vigilante Daredevil not testify.

This was absolutely the correct decision. No court would ever make a blanket ruling that any defendant apprehended by masked a vigilante should be set free. Such blanket rulings would prevent courts from reaching the ultimate question: the defendants’ quilt or innocence. But there was another reason why Judge Mandelbaum was correct in her ruling.

Matt made his motion to dismiss during a probable cause hearing. All that is decided in such hearings is whether there is enough evidence to proceed to trial. The state only has to prove that there’s sufficient evidence to establish that it is more probable than not that the defendant committed the crime. The state does not have to prove guilt beyond a reasonable doubt. So in a probable cause hearing, a police officer could testify that the department received an anonymous phone call of a shooting in Central Park and that when they arrived they found the defendant tied to a tree next to the victim and that the murder weapon, with the defendant’s fingerprints on it, was also found next to the victim. That degree of evidence might not be enough to prove guilt beyond a reasonable doubt in trial, should Daredevil not testify. But it would have been enough for a probable cause hearing. So Judge Mandelbaum was correct in denying the motion in the probable cause hearing.

Matt then informed the court that Mr. Sifuentes was not going to proceed with his plea bargain, because the previous night two other men were apprehended in connection with the murder. Matt further said that he believed any fingerprints on the bullets in the murder weapon would match one of these two men, not Mr. Sifuentes’s and that both men said they did not know Luiz Sifuentes. So Matt made a new motion to dismiss, one based on the argument that Mr. Sifuentes was actually innocent of the charges leveled against him.

Yes, I know this case was early in Matt’s career. Maybe because he was younger and just starting out, Matt wasn’t as daring as he would become. Or as willing to stretch his legal ethics worse than Spanx on Rebel Wilson. But it was so refreshing to read a story where Matt acted ethically and properly. Any chance we could get more of them?

A week later, Matt was rewarded for his ethical actions. I don’t know what actually happened. The two murderers probably confessed and exonerated Luis Sifuentes. All I know is that Judge Mandelbaum dismissed all the charges against Sifuentes “with prejudice.”

What’s that mean, that the case against Luis Sifuentes was dismissed “with prejudice?” Why, it means I have something to write about next week.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #366: ROUND UP THE USUAL SUSPICIONS

lawassOkay, a show of hands, who’s ever heard them say this one on a TV show? POLICE: “You’re under arrest.” SUSPECT: “On what charge?” POLICE: “Suspicion of murder.”

Why did I think a show of hands would work in a written medium?

Here’s a little tip for the next time any of you might be writing dialog for a police procedural; unless you’ve got Joan Fontaine married to Cary Grant in a Hitchcock movie, there’s no such thing as suspicion of murder. Or suspicion of anything, for that matter.

In our criminal justice system, all crimes are statutory. That means laws were written which created the crimes and defined the crimes’ elements. Let’s take murder, for example, because that’s the crime people are arrested for “suspicion of” committing on TV. The elements of murder are, most commonly, that the actor 1) purposely, 2) caused the death, 3) of another person. So if Cain shoots Abel with a gun and Abel dies we have a crime of biblical proportions. We also have all the elements of murder. But if even one element is missing, we don’t have murder. We may have some crime, but it’s not murder.

Say Cain didn’t know the gun was loaded then shot Abel and Abel died. Then Cain wouldn’t be guilty of murder, because Cain didn’t kill Abel on purpose. It would be some form of a negligent homicide, but not a murder.

Or if Cain shot Abel and Abel didn’t die, you wouldn’t have a murder. You’d have an assault of some sort, but not a murder, because no one died.

Finally, if Cain killed Abel, but Abel was a dog you wouldn’t have murder, because no person died. You’d have some form of animal abuse, but not a murder. (And calm down, PETA, no animals were harmed in the writing of this hypothetical.)

Suspicion is not a crime whose elements are defined in a statute. At least, I’ve never seen any statute which created a crime called suspicion and I’ve looked at the statutes of a lot of states. If your jurisdiction has a crime called suspicion on its books, let me know. I’d love to find out what it’s elements are. (I’m guessing oxygen, because it would be a lot of hot air.) However, because there’s not crime called suspicion on the books, the police can’t arrest someone for suspicion.

In the same way that the police can’t arrest you for suspicion, because it’s not a crime, they also can’t arrest you simply because they suspect you committed a crime. An arrest has to be based on probable cause not suspicion.

To have probable cause, the police have to be able to establish that it’s more probable than not that every element of the crime exists. (You do remember the elements of the crime, don’t you? We’ve talked about them periodically today.) The police also have to be able to establish that it’s more probable than not that the person they suspect of committing the crime, performed the acts which violated the statute. If they merely suspect someone, but don’t have probable cause, they can’t legally arrest that person.

In Terry v. Ohio, the Supreme Court ruled that the police may temporarily stop someone if they reasonably suspect that the person may be about to commit a crime. If the police see someone who looks like he’s casing a store he intends to rob later, the police may reasonably suspect he’s going to commit a robbery. In that case, the police may stop that person and ask him questions find out what he’s up to. Once the police have done that, they have to let the person go. The bad news is they can’t arrest him. The good news is, as the person knows the police are on to him, he’ll probably abandon his plans to rob the store.

If the police happen upon a crime – say someone has just been murdered in an alley – and the police see somebody lurking around, they may reasonably suspect that somebody met the body while the body was still alive and killed him. Under the Terry rule, the police may approach that person and ask him some questions. But they may not arrest him no matter how reasonable their suspicion may be.

Sometimes while questioning the person they suspect, the police get some actual information which gives them probable cause. A witness might come up and say he saw that person commit the murder. Or the suspect might make the classic Murder, She Wrote http://www.imdb.com/title/tt0086765/combined mistake and says something about the corpse that only the murderer could know. Once something like that happens and the police get probable cause, then they can arrest the person. But not before. Not when they only suspect him.

So, if the police can’t arrest someone for suspicion of committing a crime, how did that whole cliché start? Here’s my theory.

Last week, I talked about another common, but illegal, police practice: the investigatory hold. That’s when the police put someone they suspect of committing a crime into custody so that they can investigate the matter further. If the police get enough information to charge the person, they will present the case to the district attorney for formal charging. If they don’t they’ll release the person. I suspect arresting “on suspicion” was simply another way of saying performing an investigatory hold that the police started using because it sounds cleaner. It sounds more like the person being detained actually did something wrong – after all, he’s suspected of something rather than being investigated.

Well, police in movies and on TV, anyway. Did the police in the real world ever actually say that? I don’t know. But I have my suspicions.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #365: TV COPS PUT A HOLD ON THE CONSTITUTION

chief_wiggumIf I’ve heard it once, I’ve heard it … Okay, I didn’t actually count how many times I’ve heard it. But I’ve heard it a lot. In cop shows. In police movies. In crime novels. In detective comics, and probably Detective Comics. Pretty much any gendarme genre. Those immortal words spoken by police officers everywhere, “We can hold you for 72 hours without charging you.”

Actually, the police can’t. But they do it anyway

What the oft-heard line is referring to is the policy of an investigatory hold . Under the practice, the police would place someone in custody without charging him or affording him bail – assuming he could afford bail in the first place – for a period of time. During this time, the police would investigate the crime more fully. At the end of the investigatory hold period, the person being investigated would either be formally charged or released.

Under the 14th Amendment right to liberty, people can only be denied their right to liberty if they are afforded full due process – you know; formal arrest, formal charges, bail hearing, trial. That whole megillah. Without those things, there’s a 800-pound gorilla in the room. A gorilla called the Constitution. (What, you thought I was going to say the gorilla was called Magilla?)

In some jurisdictions, the investigatory hold period is 20 hours. In some it’s 24 hours. In others, it’s 48 hours. In some – such as in Cleveland, Ohio until an administrative judge ended the practice in 2012 – it was 72 hours.

Investigatory holds happen for a couple of reasons, both of which are unconstitutional and illegal. The first is that if person is taken into custody and held pending an investigation, it usually takes between 48 and 72 hours for a lawyer to be able to get a writ of habeas corpus before a judge who can rule that the detainee be freed. That’s one origin for the incorrect police notion that they can hold suspects for 72 hours withoug charging them.

It should be noted, as well, that this paragraph applies to regular people who have been taken into custody. So-called military detainees or prisoners of an undeclared war who are rotting away in military prisons such as Quantanamo Bay need not apply. For a habeas corpus, that is, because they won’t get one.

The other reason for the investigatory hold is that the police misinterpret certain laws to claim that the laws give them the statutory authority to conduct investigatory holds. They don’t. But the police claim, incorrectly, that they do.

What frequently happens is that a state will pass a law requiring that when a person is arrested without a warrant, that person must be formally charged or released within some period of time. The statute will then set a time period which it intended to be the maximum period. Prisoners could always be charged or brought before a magistrate in less time than the statutory maximum, but it couldn’t happen in more than the maximum time set by the law. That statutory time limit varied from state to state. It could be 20 hours, 24 hours, 48 hours, or 72 hours depending on the state and the statute. (Do those numbers look familiar? They should.)

Brooklyn-Nine-Nine

These statutes were intended to benefit people who has been arrested. They were meant to guarantee that those being arrested be formally charged or brought before a judge for a probable cause hearing and bail within a set time. They were meant to insure that people were not being held in custody indefinitely. The statutes were created, because formal charges and judges aren’t always available as soon as a person is arrested.

The police can arrest people, but the police can’t charge them with a crime. Only a prosecutor’s office can bring formal charges. In addition, the police can’t set bail or determine whether there is probable cause that those being arrested committed the crime for which they were arrested. That power belongs only to judges or magistrates. However, people aren’t always arrested when the prosecutor’s office is open or when court is in session.

People are frequently arrested at night. Or on the weekends. I represented a lot of people who had been arrested. (In fact, I’ll bet I only represented people who had been arrested.) So I can tell you from personal experience – not the experience of my having been arrested but the experience of talking to clients who had been arrested – a good number of them are arrested at night or on the weekend. That’s because a lot of crimes are committed at night or on the weekend.

Here’s the thing about prosecutor and courts. They have regular office hours. 9 to 5 type hours. Prosecutor’s offices and courts aren’t usually open for business at night or on the weekends. So people being arrested at those times can’t be brought before a judge or formally charged as soon as they’re arrested. They have to wait until the prosecutor’s office is open or court is in session.

The statutes I talked about earlier were adopted to make sure that people arrested after hours were brought before a magistrate or formally charged as soon as possible. So they’d set a time limit in the statute, mandating that charges be filed or magistrates be faced within that time limit.

Many police departments started using the statutes as a weapon against the people who were arrested, even though the statutes were intended to be a shield for the people being arrested. The police started interpreting the statutes as something that authorized them to take people into custody, while they investigated the crimes. They’d say, the statute permits us to hold suspects for what ever period of time is put into the statute without charging them or taking them before a judge. So the police would arrest a person to investigate a crime further, and hold the person in custody for the maximum time the statute allowed pending the results of that further investigation.

The practice is questionable. At best. At worst it’s unconstitutional and illegal. As I’m a glass-half-empty kind of guy, I’m going with the worst-case scenario. I say investigatory holds are unconstitutional and illegal.

I’m not alone in saying this.

Some District attorney offices have been polled as to whether they believe the practice of investigatory holds is legal. The district attorney offices polled routinely concluded it wasn’t.

The Supreme Court of the United States has held on numerous occasions that investigatory detentions are illegal. The court found such detentions to be arrests, and arrests which are made as a pretext for finding evidence violates the 4th Amendment protection against unreasonable seizure.

Courts also hold that detaining a person for investigation for a period of time longer than the earliest practical time that person could be brought before a magistrate is unconstitutional. So if a statute requires that the detainee be brought before a magistrate within 48 hours, but the police could have brought the detainee before a magistrate within 24 hours, the extended investigatory detention was unconstitutional.

Investigatory holds still exist. They shouldn’t. They violate the 4th Amendment because they’re unreasonable seizures. They violate the 6th Amendment, because police say the right to counsel doesn’t begin until formal charges are filed, so we can question this detainee without an attorney present as long as charges haven’t been filed. They violate the 8th Amendment, because they perform an end around to the Amendment’s requirement that people who are arrested are entitled to bail. They violate the 14th Amendment, because every one of the problems I just listed denies the detainee of liberty without due process of law. And they violate any concept of decency.

So the next time you hear the line, “We can hold you for 72 hours without charging you,” on TV, remember doing that wrecks and violates the Constitution. And there’s already too much wrecks and violates on television.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #364: THE BLACK HOOD-WINKS MIRANDA

STK670116I really want to see that handbook. Or technical manual. Or whatever it is that sets the procedures and policies fictional police operate under. Because the police in comic books, movies, and television are constantly talking about procedures – things they claim they get to do – that are simply wrong. Like the totally outlandish statement in the recent The Black Hood #4.

We interrupt our dissertation on the law for a dissertation on history. The Black Hood dates back to the 40s and was published by MLJ Comics; the company which later became Archie Comics. The character has kicked around since then, being revived several times to varying degrees of success. It varies from very little to none at all. The current Black Hood comic is published by Dark Circle Comics, a sub-imprint that Archie Comics created so its super heroes weren’t constrained by the kid-friendly books Archie publishes.

Not constrained is something of an understatement. The Black Hood drops more F bombs than Lewis Black in a Scorsese movie. The Black Hood was the first comic book published by Archie that used that particular word. (First comic, but not the first Archie character. I’m looking at you, Miss Grundy!)

In the grim and gritty world of The Black Hood, there are cops and there are bad guys and cops who self-identify as bad guys. But what’s important to us, is that the cops shown in The Black Hood # 4 were sitting around a table while the comic’s first-person narrative captions read, “Technically, cops can hold a suspect for six hours before having to read them Miranda. Nobody likes it much, but that’s the law.”

No, that’s not the law.

The caption used the word, “Technically.” That implies the technical manual or handbook I mentioned earlier; a book that must have more errors than the ’62 Mets . Any book that can muck up something so simple as when Miranda warnings should be read must be like one of those puzzle pictures in the Highlights for Children Magazine. You know: How many things can you find wrong in this picture?

The Miranda warnings – which are not an advisory that Turner Classic Movies is about to air a frothy musical starring a Brazilian fruit fancier – are actually an advisory created by the Supreme Court of the United States in Miranda v. Arizona. The Miranda court noted the long history of coercive interrogation tactics that the police employed over the years. Tactics called the third degree. No one seems to know where that name came from, but I think we can assume it wasn’t because the interrogators had a B.A., an M.B.A, and a Ph.D. No, we’re talking enhanced interrogation including physical torture, mental torture, and even multiple screenings of the Tommy Wiseau movie The Room. Remember this is interrogation we’re talking about not punishment, “cruel and unusual” doesn’t apply.

In order to stop the police’s pervasive use of enhanced interrogation techniques, the Miranda court imposed a requirement on the police. Before the police conduct a custodial interrogation, they must advise the detainees that they have the right to remain silent, that anything they say can be used against them, that they have the right to an attorney, and that if they can’t afford an attorney one would be appointed for them. If the police don’t give prisoners their Miranda rights before they begin custodial interrogation, then anything the prisoners say cannot be introduced against them in a court of law.

So is it true that “technically” the police don’t have to read prisoners their Miranda rights for the first six hours of custody? Is the Pope Jewish?

Miranda doesn’t set actually any time limit. The police don’t have someone playing The Minute Waltz 359 times, so they know when to give the warnings. Miranda warnings aren’t triggered by time but by interrogation.

Miranda warnings must be given before any custodial interrogation begins. If the police want to interrogate someone in custody right away, then they must give the Miranda warnings right away. They can’t start questioning the detainee then give the Miranda warnings six hours later. The only way the police can wait six hours before giving a suspect in custody the Miranda warnings is if the police wait six hours before questioning the suspect. There’s no six-hour Don’t-Get-Out-Of-Jail-Free card associated with Miranda. Not “technically” and not actually.

That’s one example of something this technical police procedure handbook got completely wrong. It’s not the only one. There are others. Lots of others. Over the next few weeks, I’m going to examine some more of these procedures that fictional police officers talk about all the time. Things they say they get to do which they actually don’t get to do.

So stick around. It should be at least as much fun as reading about what nonsense Batman was up to this week.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #363: SPIDER-MAN WATCHES A JUDGE GO FOURTH AND STULTIFY

backgroundWell, at least this time the judge had a reason for getting the law completely wrong.

We’re talking The Amazing Spider-Man #16.1 (16.1? Seriously? What’s with the odd-ball numbering in comics nowadays? We’ve had zero issues. Millionth issues. Fractional issues. Now decimal point issues? I should adapt Life of Pi to a comic book mini-series and number the issues 3.1, 3.14, 3.141, 3.1415, and so on.)

In the aforementioned and strangely numbered Spider-Man comic, Detective Teddy Rangel obtained a search warrant for a building based on a tip he received that it was a hideout of wanted crime boss Lonnie Thompson Lincoln, a.k.a. Tombstone. The New York Police Department, with the help of Spider-Man – because, after all, it was his comic – executed said warrant and arrested Tombstone and his men. Had this been Hawaii Five-O, the story would have ended when Danno booked em. It wasn’t Hawaii Five-O. It wasn’t even the revival. So the story didn’t end there.

Eight days later, Judge Anson Howell– who was to judges what Thurston was to millionaires– granted Tombstone’s motion to suppress the evidence. He ruled the search warrant was defective so the search was invalid and all the evidence obtained during said search was inadmissible.

As decisions go, that one was more questionable than “Put Your Daughters to Work Day,” which never really caught on the way that other day did. It’s true that ever since 1961 and Mapp v. Ohio, the states have lived under the exclusionary rule; a rule created by the Supreme Court that says when police obtain evidence in violation of the Fourth Amendment, that illegally seized evidence must be excluded from trial. One would think that evidence seized under a defective search warrant would be suppressed. And one would be right, if the world had stopped in 1961. It didn’t. I know because I’m waaay older than nine.

Since it’s inception, the exclusionary rule has been less popular than Justice Scalia at a gay pride parade. Over the years, the Supreme Court chipped away at the exclusionary rule by creating exceptions to it. Lots of exceptions. Ever since 1984, the year not the novel, when the Supreme Court decided United States v Leon, the country has had a “good faith” exception to the exclusionary rule.

The good faith exception says that if the police execute a search warrant in good faith and later it turns out that the search warrant was defective, then the evidence obtained during the search should not be excluded from trial. The Leon court reasoned that the exclusionary rule exists to prevent the police from violating the Fourth Amendment, because they know evidence won’t be admissible, if they do violate it. However, if the police believe in good faith that they obtained a valid warrant, then they didn’t violate the Fourth Amendment. It wasn’t their fault that a neutral and detached magistrate issued the warrant in error. So suppressing the evidence would not further the the exclusionary rule’s purpose of preventing police misconduct, because there was no police misconduct. For that reason, evidence obtained by good faith reliance on a search warrant that turned out to be defective should not be suppressed.

In the case of The People v Tombstone – yes, I know it’s actually The People of New York v. Lonnie Thompson Lincoln, but who wants to keep typing The People of New York v. Lonnie Thompson Lincoln? – Judge Howell should not have suppressed the evidence seized from Tombstone’s hideout. Even though the search warrant to have been defective, the police executed it in good faith and the good faith exception required that the evidence be admissible.

There are some exceptions to the good faith exception. One is if the police lie in their application for a search warrant and mislead the magistrate who issued it, then they know that warrant was defective They knowingly got the warrant in bad faith so can’t rely on its validity in good faith

So, did Detective Rangel obtain the warrant in bad faith by lying to the magistrate? Possibly. In fact, I’ll say probably. Detective Rangel’s source was the super villain crime boss Mr. Negative. It’s not likely that either the law or the order part of the criminal justice system would put much stock in what Mr. Negative said, as it would rather put Mr. Negative in the stocks. So it is likely that Detective Rangel claimed his source was an anonymous informant who had supplied him with reliable information in the past rather than admitting it was Mr. Negative. Judges routinely issue search warrants based on similar reliable anonymous informant representations.

If the basis of Tombstone’s motion to suppress the evidence was that the source who tipped Detective Rangel wasn’t reliable, Rangel would have had to testify at the hearing to vouch for the reliability of his source. I suspect that was the basis of the motion, as Judge Howell based his ruling on the fact that Rangel – who had been shot in the line of duty, was in a coma, and ultimately died – couldn’t testify and verify his source’s reliability.

If Rangel did lie about his source and misled the judge who issued the search warrant then he acted in bad faith. That bad faith would be imputed to the rest of the police department. So, if Judge Howell ruled that the good faith exception didn’t apply, he would have been correct.

But Judge Howell was still incorrect in suppressing the evidence.

Remember how I said that Detective Rangel was shot in the line of duty? Well, like Rangel himself, I was guilty of leaving out an important detail or two. What I didn’t tell you was that Rangel was shot by one of Tombstone’s men, when Tombstone and his men opened fire on the police officers who were executing the warrant. (Important safety tip, when the police are executing a search warrant, you don’t get to execute the police.) As soon as Tombstone and his men started shooting police officers, they broke several New York state laws. Not the least of which was NY Penal L § 120.11, aggravated assault upon a police officer.

The police had probable cause to arrest Tombstone and his men for their crimes. The police didn’t need an arrest warrant because they saw the offenders committing the crimes. When the police see people committing crimes, they have probable cause to arrest the offenders immediately and don’t need to obtain an arrest warrant first.

The police had the right to arrest Tombstone and his men for shooting the police. Tombstone and his men were in their hideout when they were arrested. That means the police were entitled to search the hideout as part of a search incident to arrest.

Search incident to an arrest, that’s another one of those numerous exceptions to the exclusionary rule I talked about earlier. When the police make an arrest, they are allowed to search the surrounding area for their own protection. So when the police arrested Tombstone, they were allowed to search the hideout incident to that arrest to make sure that there were neither more people nor more weapons in it. Judge Howell erred when he granted Tombstone’s motion to suppress. It didn’t matter that the search warrant was defective, the search didn’t violate the Fourth Amendment because it was as a lawful search incident to arrest.

So why did I say that the judge had a reason for getting the law completely wrong, if he suppressed evidence that should never have been suppressed? Because Judge Howell was corrupt. Tombstone was bribing him. And that was his reason for getting the law completely wrong.

Hey, I never said the judge had a good reason.

Bob Ingersoll: The Law Is A Ass #362: THE PHANTOM MENACE

He’s the Ghost Who Walks. And recently he’s been walking a fine line between right and wrong. Mostly wrong.

As a regular readers of ComicMix www.comicmix.com, you probably already know the eponymous star of the comic strip The Phantom. But just in case, the Phantom – real name Kit Walker – is the latest crime fighter in a family of crime fighters. The first Phantom appeared in Bangalla, Africa in the year 1536 and made the solemn oath, “I swear to devote my life to the destruction of piracy, greed, cruelty, and injustice, in all their forms! My sons and their sons, shall follow me.”

In every generation since, the oldest Walker son, upon the death of his father, dons the costume of the Phantom – a skin tight purple body suit that’s about as practical for running around in hot tropical jungles as a suit of armor would be for swimming the English Channel – and fights crime. The Phantom is also the commander of the Jungle Patrol, a Bengalli police force which, unless it was really bad at names, operates in the jungle.

For 21 generations the Phantom has fought crime. Now he’s committing them.

Recently, the Phantom chased a murderer named Barker through the junglecontent-1

As Barker ran, he wiped his fingerprints off his gun then threw the murder weapon into the brushcontent

The Phantom found the gun, brought it back, and placed it in Barker’s hand so that his finger prints would be on it when the Jungle Patrol found him. content-2

This was wrong. The Phantom planted evidence. He moved it from the bushes to Barker’s hand, where it needed it to be for a conviction. Yes, I know he was putting it back where it had been, so it wasn’t like he planted evidence that was never there to obtain a conviction. Still planting evidence is illegal and wrong. Apparently 21 generations of getting his own way spoiled the Phantom rotten.

By putting Barker’s fingerprints on the gun, after Barker had wiped it clean, the Phantom also falsified evidence. He placed incriminating evidence on the gun which wasn’t there when he found it. Again, the Phantom restored the gun to the condition it had been in before Barker doctored it, but you know the old saying about two wrongs not making a right. Everybody knows it’s three lefts that make a right.

Don’t worry about how Barker’s trial turned out. When the Jungle Patrol showed him the gun found in his hand, he said, “In my hand!? B-but I tossed the gun!” content-3

Barker stupidly admitted the murder weapon was his gun and that he had possessed it; thereby killing any chance he might have had to challenge the evidence as planted.

Actually, there was a third reason why what the Phantom did was wrong. When the Phantom retrieved the gun, a viper bit his armcontent-4

The Phantom didn’t know what kind of viper it was, so he gave himself a broad spectrum treatment of anti-venom, which had the adverse side effect of giving him amnesia. What followed was several months of story where the amnesiac Phantom joined the Jungle Patrol, because he instinctively knew that was where he belonged.

What the Phantom did was wrong, because we endured what may have been the most boring Phantom story ever written; a story that ended exactly as we knew it would, as everyone knew the Phantom would get his memory back eventually. Note to the Phantom: don’t plant evidence again. Apparently Karma doesn’t like it when you do. And while it may seek to punish you, we’re the ones who end up suffering for it.

Even more recently – as in earlier this month – the Phantom broke into a condominium in a Bangalli city. He opened a wall safe and ransacked it for incriminating paperwork. Then the Phantom waited for the condo’s owner to return.

The Phantom beat the condo owner senseless, or more senseless than he already was considering he bought a condo in Africa in today’s housing market. The Phantom took the man into the building’s fire stairs. He did this because the police in Bangalla, which has a constitution very similar to that of the United States, didn’t have a warrant to search the condo and find the incriminating papers. The Phantom dumped the incriminating papers on the man content-5

 and left them in a public area of the condo building, where the police could find them in plain view.

Apparently the Bangalli constitution is so similar to our own, that it also recognizes a Plain View exception to the Exclusionary Rule. So if the police are some place where they can lawfully be, say the public stairs of a condo building, they can seize incriminating evidence found in plain view without a search warrant. The Bangalli Plain View doctrine might even be a little more liberal than the one we have in the United States. In our Plain View doctrine, the incriminating nature of the evidence must be immediately apparent. Marijuana, for example, can be seized, because police can tell by looking at it that it’s contraband. But if the police see something like expensive stereo equipment which seems out of place in a squalid apartment, they can’t move the stereo equipment and check the serial numbers, because the criminal nature of the stereo equipment wasn’t immediately apparent to the naked eye. It required further examination to determine it was criminal in nature.

The criminal nature of the papers wouldn’t be immediately apparent, either. Someone would have to read them to determine they were incriminating. If the Phantom’s staged scene put the papers under the Plain View Doctrine, it’s a more expansive Plain View Doctrine than ours. That or some writer threw a out legal term without knowing what it meant. But writers wouldn’t do that, would they? As a writer myself, I’ll give writers the benefit of the doubt and say Bangalla’s Plain View Doctrine is broader. (See, who says I can’t play nice?)

The Phantom is a member of the Jungle Patrol. Hell, he’s it’s commander. He’s a Bangalli police officer. His actions are, therefore, subject to the limitations that the Bangalli constitution imposes on the police. When the Phantom broke into the condo and took the incriminating papers from the wall safe, he committed illegal search and seizure. He also committed aggravated burglary. Then the Phantom assaulted the condo owner, who had a perfect right to defend himself against a masked and armed trespasser. Finally, the Phantom planted evidence again, when he left the man and the incriminating papers in a public stairwell rather than in the condo where they had been. It’s all very enterprising, but it’s not in the least bit admirable.

Next the Phantom called the police to the building so they could find the criminal and his papers. Did the Phantom make an anonymous call to the cops? Nope. He discharged his .45 several times in order to wake up the innocent people who lived in the building and scare them half to death so they’d call the cops.

Not a very nice thing to do. But this Phantom has no qualms about planting evidence or aggravated burglary. What’s terrorizing a little old lady or two to him?

You can call me old-fashioned, if you want. You’d be wrong – at 62 I’m certainly old enough, but anyone who’s met me knows I have no sense of fashion. However, I do admit to holding to the old-fashioned concept that heroes, the good guys, shouldn’t commit crimes in order to fight crime. They should be better than what they fight.

The Phantom. Also called “The Ghost Who Walks.” And now we know the real reason he earned that nickname. Because when the Phantom walks, he walks all over the Constitution.

Bob Ingersoll: The Law Is A Ass #361: JERK ASSHAT WORLD

Spoiler Warnings are for sissies!

That’s why I’m not going to give you any, even though I’m going to write all about Jurassic World. First, the movie broke both the United States and the global records for opening weekend box office, so there’s a good chance that you’ve already seen it and don’t need no stinkin’ spoilers. Second, everything I’m about to tell you has already appeared in the trailers, which have been appearing before every movie being shown for the past several months. So even if you haven’t seen the movie, you’ve seen what I’m about to tell you. Third, even if you haven’t seen the trailers, it’s fourth installment in the Jurassic Park series; telling you there’s this amusement park with dinosaurs and some of the dinosaurs break out of their cages and run around eating people isn’t telling you something you don’t already know. That’s pretty much a given in a Jurassic Park movie, because it’s pretty much all the Jurassic Park movies have given.

Twenty years after the events of the first movie, John Hammond’s dream of a dinosaur theme park has been realized. According to Simon Masrani, the current CEO of Jurassic World’s parent corporation InGen, when John Hammond, the original head of InGen and the originator of Jurassic Park, was on his death bed, Hammond made Masrani promise to fulfil the dream of Jurassic Park.

Bunk! The last line of dialog from the original Jurassic Park, after the T-Rex and the raptors chased Hammond’s grandchildren all around Isla Nublar, was John Hammond saying even he no longer endorsed his own park. I doubt he had a change of heart on his death bed.

The movie may want us to believe it was Hammond’s last wish, but I think there was some other reason that Masrani wanted to make his corporation the little InGen that could. Greed. Greed and the fact that Masrani, InGen’s scientists, and Jurassic World’s management were a bunch of jerk asshats. “Hey, let’s recreate the amusement park that failed and almost bankrupted our company once and then failed again when we tried to set it in San Diego and almost bankrupted our company again. I mean, third time’s the charm, right?” Listen up, it’s comedy that works in threes.

Anyway, now appearing on Isla Nublar is the full-blown theme park Jurassic World. (InGen called it Jurassic World, because it decided after what happened on Isla Nublar the first time, calling the place Jurassic Park would be tacky. So InGen did learn something from the first movie, just not the right something.) Jurassic World had been up and running for ten years. Which means attendance was down, because jaded park goers always want some new attraction. Every time Jurassic World introduced a new attraction, attendance spiked. Masrani ordered the genetic engineers of Jurassic World to create a new attraction. Something with a “Wow!” factor. Something bigger, faster, stronger. The Six-Million Dollar Dinosaur.

indominusrexjurassicworld

The geneticists complied and created Indominus rex, a hybrid dinosaur that was part … Well, that would be telling. Exactly what species comprised Indominus is one of the few things the trailers didn’t tell you about Jurassic World and I don’t want to ruin the surprise. I can say – because the pre-movie publicity already said – that Indominus is part T-Rex, part cuttlefish, and part tree frog. Oh, and part hubris. No, make that all hubris. It’s a veritable hubris hybrid.

Indominus is big, strong, fast. And very intelligent. So intelligent that, despite the fact that it would have no way of knowing exactly what technology is or how it works, it devised a plan to escape its compound by using the park’s own technology against it.

Now Indominus was running around loose on Isla Nublar injuring people. The people it didn’t outright kill, that is. And it managed to free a bunch of pterosaurs from their locked aviary. So soon, there was an Idominus running around injuring and killing people and pterosaurs flying around injuring and killing people. (Honest, none of this is spoilers, everything that I’ve described was shown in the movie’s trailers. Hell, you didn’t even have to watch the trailers, they showed the pterosaur attacks in a Dairy Queen ad for its new Jurassic Smash Blizzard . )

jurrasic_world_mp_41

But this is where I stop relating the plot. We’ve finally moved into the part of the movie that the trailers didn’t show us beforehand and the part of the column where I start analyzing some law.

There’s a scene in the movie that occurs after “all the dinosaurs are running wild” where Vincent D’Onofrio’s character said to B. D. Wong’s character something like, “By Monday morning this park will be in Chapter 11.” Meaning that the park is going to have to file for Chapter 11 bankruptcy protection to try to survive all of the lawsuits that will be coming from either all the people who survived the attacks or the families of all the people killed in the attacks.

That’s when I thought to myself – a silly phrase, we’re not comic books, when we think little bumpy balloons containing our thoughts don’t appear above our heads so that other people can read them, so who else could we be thinking to but ourselves – I thought, “More than just the park’s going to be in Chapter 11.”

Jurassic World’s scientists didn’t just build the Indominus on a whim. They built it on a budget. A budget approved because of the specific instructions of InGen’s CEO to make an new attraction that was bigger, stronger, scarier and wowier. In other words, they used InGen’s money to follow the specific orders of InGen’s CEO to build a new dinosaur that proved to be beyond their control. A new dinosaur that was highly dangerous, that escaped, that released other highly dangerous prehistoric creatures, and that caused massive amounts of big-budget, special effect-laden death and destruction.

The lawyers representing the injured parties should sue more than just Jurassic World. They should also sue InGen, which is more than a little bit responsible for Indominus and all the death and destruction she caused either. “More than a little bit” being lawyerly weasel words for “directly.”

In law school we were always taught to sue the deepest pockets. Why? Because when you sue for damages you’re looking for monetary compensation from the people you’re suing. If you’re looking for money, you go after the deepest pockets, because that’s where the most money is. If we use a real-world analogy, who has deeper pockets, Disneyland or the Walt Disney Company? Considering The Walt Disney Company is the world’s second largest broadcasting and cable company after Comcast and owns ABC, ESPN, Marvel Comics, Walt Disney Studios. Disneyland just owns Disneyland, which also happens to be owned by the Walt Disney Company. So, I’m going with the company not the park, itself.

Which means any lawyer worth his assault suits would sue not only Jurassic World but the parent corporation InGen, which funded Jurassic World, funded its research, and ordered the park to create the big bad dinosaur in the first place. Given the evidence the lawyers would have against InGen, the lawyers could be worth less than actual salt and still be good enough to sue the jerk asshats Jurassic assets off.