Category: The Law Is A Ass

BOB INGERSOLL: THE LAW IS A ASS #343: COMMISSIONER GORDON CAN’T DO THE TIME, IF HE DIDN’T DO THE CRIME

Columns / The Law Is A Ass
January 30, 2015

If you thought things looked bad in Batman Eternal before, well now they’re even worse. But enough about Batman Eternal, let’s look at where this year-long story has put our friend Commissioner James Gordon of the Gotham City Police Department. It’s not looking too good for him, either.

In Batman Eternal # 21, Commissioner Jim Gordon, who had been tried on 162 counts of manslaughter was found guilty on 123 of them. That must have been soooome interesting trial. The prosecution alleged Gordon negligently discharged his service revolver in a subway station, causing a transformer box to explode. This catastrophe somehow caused two subway trains to collide. The resulting death toll was 162, hence 162 counts of manslaughter. So, based on these facts, how was Gordon convicted on only 123 counts? Shouldn’t he have been guilty of everyone who died in the crash? Not most everybody?

Did 39 people who were on the subway all die of sudden, simultaneous heart attacks just seconds before the crash? Or 28 died from slow-acting poison administered by their wives at breakfast, while 10 of them succumbed to Legionaries’ Disease, and one of them just burst out in spontaneous human combustion? No, there’s nothing wrong with this result, I’m just curious as to what evidence the jury could have heard that made them believe that Gordon was responsible for only 123 of the deaths but not those last 39.

Anyway for some reason not explained in the story, Gordon was convicted of 123 counts of manslaughter. Then, for some reason also not explained in the story, he was promptly sentenced to life in prison in Blackgate Penitentiary.

Now we are in the realm of something legally wrong with the result. Long story short – a term that can’t be applied to Batman Eternal, itself – Gordon really wasn’t sentenced to a life term, because he couldn’t have been.

Under the Fifth Amendment to the United States Constitution – an Amendment which applies both to the federal government and to the individual states by incorporation of the Due Process Clause of the Fourteenth Amendment– no government may deprive a person of liberty without due process of law. And even though some people who suffered through six seasons of Snooki and her drinking buddies might want to disavow New Jersey, it is part of the United States. That means the Fifth Amendment fully applied to Jim Gordon’s sentence.

What does the Constitution mean when the Constitution says that a person can’t be deprived of liberty without due process of law? Among other things, it means that a defendant can’t receive a sentence which is not authorized by the sentencing statutes of the jurisdiction in which he or she was convicted. See, e.g., Williams v. New York (1949) 337 U.S. 241.

(Wow, it’s been a few years since I’ve used the old “See, e.g.,” in a sentence. Nice to know the muscles haven’t atrophied.)

Boiled down to its essence, if a state trial court imposes a sentence which is greater than the sentence that jurisdiction’s sentencing statutes authorize, that sentence is void. Boiling the essence down to its essence, if a defendant is convicted of theft and the statutes authorize a maximum sentence of only one year for theft, then the defendant can’t be sentenced to two years. Not even if the defendant stole candy from a baby and the judge thought a longer sentence was more appropriate. The harsher sentence was not authorized by the law and due process says only the sentences authorized by law can be imposed.

In the same way, if a person is convicted of manslaughter in New Jersey and the New Jersey statutes don’t authorize a life sentence for manslaughter, then imposing a life sentence is unconstitutional and the sentence is void. Doesn’t matter that the defendant’s manslaughter was magnified by a factor of 123, the judge can’t up the sentence to something not found in the law, just because the crimes were particularly heinous. (Which means, unfortunately, no matter how much we may think they deserve it, the producers of Jersey Shore can’t get the death penalty.)

New Jersey Statute 2C:11-4 defines manslaughter. It, in fact, defines two kinds of manslaughter. They are aggravated manslaughter, a felony of the first degree, and manslaughter, a felony of the second degree. If you surmise that felonies of the first degree carry harsher sentences than felonies of the second degree, you are correct. Congratulations on your astuteness. If you happened to make this surmise based on what your learned after years of reading “The Law Is a Ass,” then congratulations on your good taste and thanks for paying attention.

Batman Eternal never actually mentioned whether Gordon was charged with manslaughter or aggravated manslaughter. For the purpose of this little treatise, I’ll assume he was charged with the worst form of manslaughter: aggravated manslaughter under circumstances manifesting extreme indifference to human life. Why? Because that’s the version of manslaughter that has the longest sentence. If any version of manslaughter was going to carry a life sentence, that would be the one.

Buuut, it doesn’t. The same statute that defined aggravated manslaughter also set the maximum sentence for aggravated manslaughter. Set it at 30 years.

That’s 30 years; not life.

Last time I looked – in fact every time I looked – a life sentence was longer than 30 years. Gordon’s life sentence exceeds the statutory maximum sentence for a manslaughter conviction in New Jersey. Which means the life sentence imposed on Gordon was illegal. And unconstitutional.

Sure, the judge could have imposed a maximum sentence of 30 years on each of the 123 counts of manslaughter and ordered Gordon serve them consecutively; that is one after the other, after the other, and so on until you reach 123 of them. Quick math – okay, quick use of the calculator app on my computer – reveals that maximum, consecutive sentences in Gordon’s case yields a sentence of 3,690 years. But that’s still not life.

Yes, 3,690 years is the functional equivalent of a life sentence. In fact it’s closer to the functional equivalent of a life sentence with a few extra zeros added to the back end just to seal the deal. Not to mention seal away the defendant for a good long while. But 123 sentences of 30 years maxed and stacked, is still shorter than a single life sentence. The life sentence was illegal.

Which is why I say Gordon couldn’t have been sentenced to a life term. Because he couldn’t.

Would it have been that difficult for someone to have checked what sentences would be possible for Gordon’s manslaughter convictions? I wasted a whole ten seconds writing a simple and rather unimaginative Google search on “New Jersey manslaughter sentences” which produced a whole page of links almost any of which revealed the answer. With that information, the writers could have given Gordon an actual and legal sentence not whatever sounded the worst.

For that matter, does life actually sound worse than 3,690 years? I don’t think so. After all, 3690 years, much like Batman Eternal, is actually longer than life.

BOB INGERSOLL: THE LAW IS A ASS #342: BATMAN’S SEPARATION ANXIETY

Columns / The Law Is A Ass
January 23, 2015

Things aren’t looking good over in Batman Eternal. Not for former police commissioner Jim Gordon. Not for Batman. And not for us.

Not for Gordon, because eight issues into this fifty-two issue maxi-series, he’s still sitting in Blackgate Penitentiary awaiting trial for 162 counts of manslaughter. Not for Batman, because his best friend and former police commissioner is in Blackgate leaving Batman with interim commissioner Jack Forbes. And not for us, because eight issues into the fifty-two issue maxi-series that is Batman Eternal, we’ve realized its glacial pacing shows no signs of melting even with global warming. Seriously, this story has more padding than bubble wrap.

So what is it this time that’s got my spleen venting like a Yellowstone geyser? It’s interim police commissioner Jack Forbes. When we first met Forbes, back in Batman: The Dark Knight # 1, he was a lieutenant in Internal Affairs and had a bug up his butt about costumed vigilantes. Seems he longed for the good old days when the police were treated like kings and got to gun down the people they didn’t like. Also he was a police officer in Gotham City who wasn’t named Gordon, Bullock, Sawyer, or Montoya and that means he was…

(Come on, Sing Along With Bob. Unlike with Mitch, you don’t need a bouncing ball. You know the words.)

… Completely corrupt. As in, Forbes is so is Carmine Falcone’s pocket, that Falcone doesn’t have room for lint. After former commissioner Jim Gordon was arrested, Falcone used his influence on Mayor Sebastian Hady – a corrupt politician who’s not just in Falcone’s pocket, he might as well be Falcone’s house key – to have Forbes installed as police commissioner.

Forbes’s first act as commissioner – literally, I think he did it even before breathing – was to declare war on Batman. And that brings us up to speed on Batman Eternal. (Which may be the only time that speed and Batman Eternal appear in the same sentence.)

Even after Forbes was appointed commissioner, Batman did what Batman does. He rounded up bad guys. Particularly bad guys in the employ of Falcone. Then Falcone pulled on Forbes’s leash and Forbes ordered the police to release all those criminals that Batman “practically gift-wrapped” because, “Commissioner Forbes doesn’t recognize Batman. Says the city prosecutor has no authority to prosecute anybody brought in by a vigilante.”

First, how do you not recognize Batman? He’s 6’ 2” rocks a gray armored unitard and sports a face mask with big pointy ears. How do you not know who he is when you see him? Second, Mr. Forbes, I know when Carmine Falcone says, “Jump!” you doesn’t bother asking, “How High?” you just hope matching LeBron James’s vertical leap is good enough, but when you do your master’s bidding don’t make it so damn obvious.

Forbes, if you want to say the city prosecutor can’t prosecute anybody brought in by Batman, because there weren’t any other witnesses to their criminal activities and Batman can’t testify, I could live with that, because that would be an accurate statement of the laws. But the city prosecutor has no authority to prosecute anyone brought in by a vigilante? Why don’t you just polish Falcone’s hip flask, while you’re making yourself at home?

Forbes’s attitude begs two questions. First, who is Commissioner Forbes to dictate the authority of the city prosecutor? The Police Department and the Law Department may both be part of the Executive Branch of Gotham City’s government, but they’re separate departments. The head of one such department doesn’t get to set the authority of what the head of another department can or cannot do. I’ll bet even the Mayor, the head of Gotham City’s Executive Department, can’t dictate who the city prosecutor gets to prosecute.

American governments operate under the principle of separation of powers and its attendant checks and balances. In most jurisdictions to maintain said checks and balances, the Executive Branch is charged with administering the law, but the Legislative Branch is charged with passing the laws. So it would be the Gotham’s City Council that would pass the laws establishing who the prosecutor may prosecute. That authority cannot come by fiat from the police commissioner.

The second question vis-a-vis prosecutors having no authority to prosecute criminals arrested by vigilantes: Didn’t you watch any Andy Griffith Show re-runs as a kid?

Current editions of Noah Webster’s seminal tome on word definitions defines vigilante as, “A person who is not a police officer but who tries to catch and punish criminals.” Let’s look at that.

Someone “who is not a police officer.” That’s you or me. Or Batman. Who “tries to catch and punish criminals.” I admit that “punish” part is troubling. Sounds a bit like a lynch mob. But Batman doesn’t punish the criminals, he leaves them for the police and lets the justice system prosecute them and punish them. So, let’s leave the punish part out of it. Then what do we have? Someone who is not a police officer, i.e., a citizen, who tries to catch criminals. According to Forbes, the city prosecutor doesn’t have the authority to prosecute anyone arrested in that manner.

What would happen if you or I saw a crime being committed, apprehended the perpetrator, and brought him to the police? We’d be making a perfectly valid citizen’s arrest. And if that’s good enough for Gomer Pyle, why isn’t it good enough for Batman?

Seriously, the ability of a common citizen to make a citizen’s arrest dates back in the good old days of common law. It continues today. All states allow citizen’s arrests. Most states have codified Citizen’s arrest in their statutes. In New Jersey, it’s N.J.S.A. 2A: 169-3, “Whenever an offense is committed in his presence, any constable or police officer shall, and any other person may, apprehend without warrant and process any disorderly person and take him before any magistrate of the county where apprehended.” (Emphasis added.)

So New Jersey has a law that allows Batman to do what he’s doing. The same law, by extension, must grant the city prosecutor the authority to prosecute the people brought in by Batman or other citizen’s arrests, at least implicitly. After all, if the law didn’t authorize prosecution of citizen-arrested offenders, then why bother having a law allowing citizen’s arrests in the first place? So, Mr. Forbes, there’s a law that permits prosecution of those arrested by citizens and that pretty much trumps any edict issued by you.

Mr. Forbes, if you think your banning those criminals captured by Batman from being prosecuted will be a piece of cake, you’re wrong. Everyone knows, you can’t have your cake and edict, too.

Bob Ingersoll: The Law Is A Ass #341: COMMISSIONER GORDON WON’T BAIL ON US

Columns / The Law Is A Ass
January 16, 2015

I’ll let you in on a little secret: Batman Eternal isn’t. Eternal, that is. It won’t go on forever. Sometimes it just seems like it will.

Of course, if it did last an eternity and it continued to do things like the bail hearing found in Batman Eternal # 4, that wouldn’t be bad for me. It would mean an eternity of column material.

So, in Batman Eternal # 4, Commissioner Gordon appeared before a judge in a bail hearing after being charged with 162 counts of manslaughter. If you’re wondering how or why, you can find the answer in Batman Eternal # 1. Or you can read last week’s column, where I discussed exactly that. But don’t look here, because I’m not chewing that cud twice. Why not? Be cuds, that’s why.

The judge denied Gordon bail with the following reasoning, “All this destruction. All this death. This is your fault, James Gordon. Because of your negligence. One hundred sixty-two dead. Billions in damage. Critical Gotham infrastructure destroyed. And a major disruption to the lives of every citizen in Gotham. … I’m sorry … but the prosecution is correct that you are a flight risk. You’ve a longstanding willingness to align yourself with Gotham’s vigilante elements, so I’m afraid I have no choice. Your request for bail is denied. And you will be held in Blackgate Prison until your trial for manslaughter.”

A judge in a bail hearing wouldn’t say those things. Oh, he might say the “Your request for bail is denied,” part. He wouldn’t say the, “This is your fault,” part. Between newspapers, TV, blogs, and even live tweeting, other people, meaning probably all of Gotham City, would know that this judge – a respected person who the laity look up to as an expert on the law – said Gordon was guilty. Good luck finding an impartial jury after that little tirade.

As for bail, remember, I only said the judge might deny bail. Might being the key, and even italicized, word. I think it’s unlikely that the judge would deny Commissioner Gordon bail. Okay, more likely than a judge expressing his opinion that the defendant was guilty, but still not likely.

Bail is a pledge of money or property the defendant makes as a surety that he will return for trial if the court releases him before trial. The Eighth Amendment to the Constitution says all criminal defendants have a right to bail that is not excessive. And, while the Eighth Amendment doesn’t expressly grant a right to bail, Rule 7:4-1 of the New Jersey rules of court specifically does grant all defendants a right to bail.

The judge denied bail because he deemed Gordon was a flight risk. The factors which a judge is supposed to consider in order to determine whether a defendant is a flight risk are such things as the length of possible sentences, the strength of the evidence, the defendant’s family and community ties, the defendant’s financial resources, the defendant’s character, and the opportunity to flee.

I admit, the “strength of the evidence,” and “length of sentence” factors do weigh against Gordon. The evidence in against Gordon appeared to be strong. It probably will continue looking strong until Batman Eternal # 48 or so, when Batman finally stops treading water and starts investigating the case in earnest.

The maximum sentence for aggravated manslaughter in New Jersey is 30 years. If Gordon were convicted on all 162 counts and the judge imposed maximum, consecutive sentences on each count, that would be 4,860 years. Even I, who’s acting as devil’s advocate for Jim Gordon, admit that is more than just a little bit lengthy.

But while these facts alone might make Gordon seem a flight risk, those aren’t the only factors the judge should have considered. What about the other factors a judge is supposed to consider? What about, say family and community ties. Gordon has plenty.

Commissioner Gordon had a distinguished career in public service during which he rose from the rank of sargent to commissioner. In less than five years, if I read the revised continuity of the New 52 correctly. He has a daughter in Gotham City. He has many friends in Gotham City, including one of the leading citizens of the city, Bruce Wayne. In other words, Gordon has lots of family and community ties to the community. This factor weighs heavily against ruling Gordon a flight risk.

How about financial resources? Gordon doesn’t have a lot. He was a cop. An honest cop – one of the few honest cops in Gotham City, it seems. Cops don’t earn a lot of money. Honest cops earn even less. Okay, commissioners earn more than beat cops, but still, Gordon wouldn’t be rich. Certainly not rich enough that he could set up a new life for himself in, say Belize, were he to skip bail and flee Gotham.

Yes, Gordon does have rich friends, including one of the leading citizens – and the richest citizen – in Gotham City, Bruce Wayne. Wayne could set up a new identity for Gordon, if Gordon choose to flee. And if Wayne decided to subvert the law in this way. But what evidence could the the state introduce to prove that Bruce Wayne was likely to fund any plan Gordon had for fleeing the jurisdiction? Probably even less evidence than it could introduce to prove that Gordon planned to flee the jurisdiction. And it didn’t have any evidence that he was going to flee.

Defendant’s character. Remember what I said about Gordon being one of the few honest cops in Gotham? Kinda goes to his character, doesn’t it?

The only evidence that the state really had to prove that Gordon had a bad character is that he worked hand-in-hand with known vigilantes. This was the only reason the judge cited when he denied bail. But just because a man works with vigilantes, particularly vigilantes who are actually quite effective in bringing the criminal element to justice, doesn’t make him a person of bad character. Moreover, working with actual justice-helping vigilantes would dictate that a person was of a law-abiding character, not a bail-jumping character.

After weighing the factors in Gordon’s case, I don’t think there was enough evidence to justify denying Gordon his right to bail. To be sure, the judge could have set the bail very high. But I still think the judge would have granted bail.

So why didn’t the judge grant Gordon bail? I have a theory.

Remember what I said earlier about Gordon being one of the few honest cops in Gotham City? Same is true of its politicians. Mayor Sebastian Hady? Corrupt. Former police commissioner Gillian Loeb? Corrupt. The commissioners between Loeb and Gordon? Corrupt. Tammany Hall? Historically corrupt. But it’s historical corruption is only a fraction of the corruption that is shown every time a politician appears in a Batman story. So it wouldn’t be a stretch to conclude the judge in Gordon’s hearing? Corrupt.

Now someone is orchestrating this massive 52-issue plan to frame Commissioner Gordon. Is it so hard to believe that the judge would be adverse to accepting a little something, something from that “someone?” Or that the trial judge accepted a little more something, something to order that Gordon serve his time waiting trial in Blackgate Prison instead of the county jail, where most pre-trial detainees are held? I don’t think so.

Were this England, instead of Gotham City, you could say denying Gordon bail was a case of quids pro quo. It being Gotham City, I think it’s more a case of status quo.

Bob Ingersoll: THE LAW IS A ASS #340: THE ETERNAL LIGHTNESS OF BEING BATMAN

Columns / The Law Is A Ass
January 9, 2015

There are, among people of a particularly black-humored and waggish bent, jokes that you can’t have manslaughter without mans laughter. Well, I’m not laughing. Not only does manslaughter entail the unlawful killing of another human being – something which is not inherently humorous – but manslaughter is also how the long, arduous Bataan Death March that is Batman Eternal started. And there ain’t anything inherently humorous about that either.

Batman Eternal started with Commissioner Jim Gordon chasing fleeing felon Derek Grady into a subway station. The chase ended on the subway tracks, while two subway trains were approaching the station on the same track, from opposite directions. Grady was standing in front of a transformer box and Gordon saw a gun in his hand. So Gordon shot at Grady’s gun, intending the classic Lone Ranger disarm.

(If your only experience with the Lone Ranger is the Johnny Depp movie, I pity you. The real Lone Ranger was more competent than the oaf in that movie. He never took a life. He shot the guns out of the bad guys’ hands. He was that good. Oh yeah, and his horse couldn’t climb trees, either.)

We’ll never know whether Commissioner Gordon was as good a shot as the Lone Ranger. He didn’t shoot the gun out of Grady’s hand, because Grady didn’t actually have a gun. Gordon had been tricked into thinking he saw a gun. Gordon’s bullet passed through the nonexistent gun and hit the transformer box behind Grady. The box exploded. Then the switching mechanism for the tracks didn’t activate. Neither of the two trains switched to a new track. They collided head on causing one hundred sixty-two civilian deaths. Jim Gordon was arrested on one hundred sixty-two counts of manslaughter. One hundred sixty-two counts, one arrest. It would have been silly to arrest him one hundred sixty-two times. And a waste of fingerprint ink.

Like I said, not a laughing matter. Except, you know, I’m still going to make more jokes in this column, because, you know, it’s what I do and I’m, you know, a hypocrite. But I’m also a pretty good criminal defense attorney. And even though I haven’t practiced in years, I can still be a pretty good pretend attorney for fictional characters.

For example, I know it’s not enough that the state of New Jersey charged Jim with one hundred sixty-two counts of manslaughter. What’s important is that, like bubble gum on the underside of a desk, the charges have to stick. The one hundred sixty-two manslaughter charges against Jim? They’d stick worse than an unlicked postage stamp.

New Jersey Statute 2C:11-4 two kinds of manslaughter, aggravated manslaughter and simple manslaughter. (Okay, there’s also vehicular manslaughter, but Gordon was on foot, so fergedaboudit!) Further complicating matters – because people who write penal codes are never satisfied until they can complicate matters by creating multiple ways for every crime to be committed – each type of manslaughter has two variants. A person is guilty of aggravated manslaughter if he either causes a death under circumstances while manifesting extreme indifference to human life or causes a death while attempting to elude a law enforcement officer. A person commits simple manslaughter when he either recklessly causes the death of another or causes the death of another while in the heat of passion resulting from reasonable provocation. Fortunately for our purposes, just like vehicular manslaughter, two of those four manslaughters are off the table.

James Gordon didn’t cause anybody’s death while eluding the police. He was the police and Grady was eluding him. Only the eluder can commit manslaughter, not the eludee. (I’ve always wanted to make one of those inane “er”/“ee” comments, One more thing off my bucket list. Moving on to my next item. You wouldn’t happen to know where I can get a gallon of chipotle mayo and yak’s milk, would you?)

Gordon also didn’t cause anyone’s reasonable provocation. While a fleeing felon not surrendering his gun might constitute reasonable provocation, that’s not the case here. Gordon thought he saw a gun, but every witness, including Batman, said Grady didn’t have a gun. Even I, the omniscient narrator, tell you, Grady didn’t have a gun. (Why Gordon thought he saw a gun is a long story, but so is Batman Eternal. How Gordon was made to believe Grady had a gun was ultimately revealed in Batman Eternal # 19. As I’m writing about Batman Eternal # 1 and don’t want to write Spoiler Warning this week, I won’t go that story today.) What’s important is that Grady didn’t have a gun. No gun, no provocation. No provocation, no heat of passion. (No Heat of Passion, sounds like the worst Harlequin Romance ever!)

So what about causing a death with extreme indifference to life or causing death recklessly? Like your Christmas centerpiece in January, they’re still on the table.

Gordon said the transformer box behind Grady was shut down and shouldn’t have exploded. He also said the transformer box only controlled the station giving power to the station’s lights and turnstiles. It didn’t control the tracks or their switching boxes. Gordon shot at the gun he thought he saw even though it was right in front of the transformer, because he believed even if he hit the transformer by accident, that would not cause the two subway trains to collide.

For the sake of argument, let’s assume Gordon was correct. I say this because if Gordon was wrong, then he was guilty of manslaughter. End of story. End of column. And I still have a few jokes I’ve got to put somewhere.

I also say this because, let’s face it, Gordon was set up. Somebody tampered with the transformer and the tracks. Eventually, Gordon will be cleared and be commissioner again. We all know this, even if Batman Eternal hasn’t told us how he was set up or who did it yet.

Anyway, if Gordon was correct, then he wasn’t guilty of manslaughter. If shooting the transformer by accident wouldn’t have had any effect on the trains, then he didn’t show indifference to life. He honestly believed that if he accidentally shot the transformer, it wouldn’t affect anything.

As for reckless manslaughter, recklessness requires proving the conscious disregard of a substantial risk that a death would result from one’s actions. If shooting the transformer box wouldn’t do anything, then there wasn’t a substantial risk of death from his actions. Not even the Neil Hamilton Commissioner Gordon from the Batman TV show, who set the standard for police incompetence, could disregard a risk that wasn’t even there.

Even if Gordon acted negligently in shooting the box, that can’t get him convicted of manslaughter. In the eyes of the law, a negligent act, or simple accident, does not rise to the level of a reckless act. In New Jersey, manslaughter has to be reckless not negligent.

The prosecutors might argue Gordon was wrong; the transformer wasn’t shut off and did control the switching mechanisms, so shooting toward it was reckless and showed indifference toward life. It should be pretty easy to prove whether Gordon was correct. Any competent electrician could look at the station’s wiring schematics and determine who was right. (Sure the police in Gotham City are incompetent, but there must be competent electricians in the city. Who do you think wires up all those death traps?)

Might Gordon may be guilty of some crime, say negligent homicide? Maybe. But he was charged with manslaughter and I wanted show that I don’t think the prosecution can make its manslaughter case against Gordon.

Still, even if you haven’t been reading Batman Eternal, you know the prosecutors will make their case against Gordon. Batman Eternal is, after all, a fifty-two issue limited series that’s running every week for an entire year. That’s 1,040 pages worth of story. 1,040 is even more pages than I need to fill out my own 1040 every April 15^th. DC has to have something that stretches this story out for 1,040 pages. Having Gordon acquitted of all one hundred sixty-two counts of manslaughter would seem to be counter productive to the product.

BOB INGERSOLL: THE LAW IS A ASS #339: INSPECTOR DANGER THE BREAKS THE CASE WIDE OPEN. OR DOES HE?

Columns / The Law Is A Ass
January 2, 2015

I realize that most of you probably don’t have a deerstalker cap. So go get a couple of baseball caps. Wear one brim facing forward and the other brim facing backwards. You need the right visual. Because it’s time to look for the clues and solve a crime by matching wits with Inspector Danger.

Inspector Danger’s Crime Quiz is a comic strip produced by Werner Wejp-Olsen. In it the good inspector is presented with a weekly mystery to solve. Inspector Danger and his witless assistant Alfie – a foil who is so unobservant and dim that he makes the Nigel Bruce Watson look a positive luminary – investigate the crime. The strip provides you with all the clues you need to solve the crime before the Inspector. The Inspector solves the crime and his solution is printed upside down at the bottom of the strip. Meanwhile, Alfie stands around, and might as well have cartoon question marks floating around his head.

Now let me present you with the mystery from the December 8^th installment of Inspector Danger’s Crime Quiz. We’ll see how well you do in solving the mystery.

Herbert Hudson, CEO of the recently bankrupt company Hudson Tech, drowned when his car drove off the pier and into the harbor. It looked like suicide. Hudson’s widow confirmed that Herbert had been depressed and threatened to take his own life. She wondered why he bothered to drive the ten to fifteen miles from his house all the way to the harbor to kill himself. She also came across as less-than-sympathetic when her chief concern was that all the money was gone and she, who was “used to a certain life style,” would soon be “walking the streets.”

The lab tech who examined Hudson’s car said the crime wasn’t suicide. The brake cables had been cut so it was murder. Apparently, the police department’s budget had been cut too. If the lab tech was talking about brake cables, his police lab’s stocked with really old reference books. Automobile brakes don’t use cables anymore. They’re all hydraulic. Have been since around the 1940s. Yes, the emergency brake still uses a cable, but if that cable had been cut, the car’s regular brakes would still have worked. Hudson’s car could have stopped on a dime and spotted you a nickle.

Unless …

So Hubert Hudson drove his 1934 Hudson Eight into the drink after the brake cables had been cut. (Notice how skillfully I made a play on words and saved the story?) Now the good Inspector Danger was investigating Hudson’s murder.

Hudson’s attorney said Hudson’s widow had money as Hudson left a $5,000,000 insurance policy with her as the beneficiary. The attorney also said the contract had an anti-suicide clause http://www.businessdictionary.com/definition/suicide-clause.html, so the death benefit wouldn’t be paid if the death was a suicide. But that clause wouldn’t apply here, as the death resulted from a murder.

Inspector Danger paced around in circles for a panel. He didn’t think the wife was mechanically inclined enough to have cut the brake cables. He wondered whether she had someone helping her. Then he came up with his solution. Now while you read, my spoiler warning, think about the clues and see if you can identify the criminal.

SPOILER WARNING!

I am about to reveal Inspector Danger’s solution. So, if you don’t want to know it before you figure out the solution yourself, stop reading. End of WARNING, here comes the solution.

Inspector Danger deduced that Herbert Hudson did commit suicide. If someone else had cut the brake cables before Hudson started on his trip, he wouldn’t have been able to stop his car during the ten to fifteen mile drive and would have crashed into something long before he ever reached the harbor. Inspector Danger figured that Hudson drove to the harbor, then cut the brake cables himself just before he drove his car into the water. Hudson wanted to make his suicide look like a murder so his wife could collect the $5,000,000 death benefit. The solution also told us that Inspector Danger left the case “unsolved,” so that Hudson’s wife could collect the death benefit. “Chivalry over duty.”

So did you spot the criminal? If you said Herbert Hudson, you’re right. Kind of. If you said his crime was suicide, you’re wrong. Contrary to popular belief, it’s not against the law to commit suicide. In the United States, the laws making suicide a crime were abolished long ago http://en.wikipedia.org/wiki/Suicide_legislation. Moreover, even when those laws were in effect, it wasn’t really against the law to commit suicide. It was against the law to attempt suicide. But if you committed suicide, you’d be dead. The police wouldn’t be able to arrest or prosecute you even though they literally had the corpus delicti http://legal-dictionary.thefreedictionary.com/Corpus+delicti.

Let’s try another crime. Remember, Hudson committed suicide but made it look like a murder so that his wife would be able to collect a $5,000,000 death despite his policy’s anti-suicide clause. Voila, another crime; insurance fraud.

Now, I don’t know in what state the good Inspector operates, other than a general state of confusion, so, I’ll use the general definition of insurance fraud. Insurance fraud occurs when someone does a “duplicitous act” so that he or she can obtain an improper payment from an insurance company. Usually, the person collecting the proceeds of the insurance policy is the person committing the duplicitous act, but it can be someone else. If a doctor helps a patient fake an injury, so that the patient can swindle an insurance company, then the doctor is an aider and abettor and equally guilty of insurance fraud, even if only the patient collected the proceeds. In our story, Hudson committed insurance fraud by making a suicide look like a murder, so that his wife could collect an improper death benefit to which she was not entitled.

Of course, Hudson’s dead. He can’t be arrested or prosecuted. So, calling him the criminal is a little unsatisfying. Where’s the justice in the story, if the criminal can’t be prosecuted? Sure Logan and Brisco would be kept busy, but what would Jack McCoy get to do?

How about Mrs. Hudson? Was she guilty of insurance fraud for filing a claim for a death benefit to which she was not really entitled? No. There’s no indication that Mrs. Hudson knew her husband had faked a murder. She honestly thought he was murdered. So when she filed a claim for the death benefit – not if but when, because you know someone as mercenary as her wouldn’t leave seven figures uncollected – when she filed a claim, she wouldn’t know it was fraudulent. She wouldn’t be guilty of insurance fraud. If the insurance company learned the truth, it could deny her the benefit, but it couldn’t have her prosecuted for insurance fraud, because she did not knowingly commit a duplicitous act.

Which leads us to question that still hasn’t been answered: A crime was committed so who was the real criminal in the story? There’s got to be one someone somewhere who can take the fall.

If you said Inspector Danger, you win the prize.

Inspector Danger knew Hudson committed suicide. He knew Mrs. Hudson had no legal claim to the death benefit on her husband’s policy. But he kept this information secret so that Mrs. Hudson could collect the $5,000,000, anyway. He aided and abetted Mr. Hudson in committing insurance fraud by letting Mrs. Hudson collect proceeds which he knew she was not entitled to collect.

So, let’s haul the not-so-good Inspector off to jail and put Alfie in charge of the investigations. I can see the strip now. A crime is committed. Alfie stumbles around for several panels without the slightest idea who the criminal is. Then he stands on his head to reads the week’s solution at the bottom of the page, but still has no idea who to arrest.

And we could say that Alfie never meta criminal that he could catch.

BOB INGERSOLL: THE LAW IS A ASS #338: SHE-HULK IS TRYING MY PATIENCE

The Law Is A Ass
December 26, 2014

I guess it’s just an occupational hazard with the lawyering game; assuming your clients are lying to you. Lord knows, I was guilty of it enough times. Of course, it’s easy to do that, when your initial conversations go something like this.

“I didn’t burgle that house, Mr. Ingersoll.”

“The police found your fingerprints in the house.”

“The police planted my fingerprints there.”

“The police found you in the house.”

“The police planted me there.”

Okay, that was a slight exaggeration. My clients don’t actually know the difference between burgle and rob. But you get the idea.

So, as I said, it’s an occupational hazard. And it affects all of us. Even Jennifer (She-Hulk) Walters. Even when her client is Captain America.

So, if you guessed today’s column is about Part 3 of “The Good Old Days,” from She-Hulk v.3 #10, you’re right. Now as this was part three of a three-part story, let’s get you up to speed.

In 1940, Harold Fogler left his home in Brooklyn and went out to Los Angeles http://www.discoverlosangeles.com to make his mark. He failed like a wino with bad bourbon. Largely because he hooked up with some “bad people,” who were planning to cause a riot on the Los Angeles docks. Harold’s younger brother, Sam, and a pre-Captain America Steve Rogers came out to LA looking for Harold. They found him. But the bad people found them.

The bad people ordered Harold to shoot Sam and Steve. Harold refused. Then Steve started telling the bad people how weak and cowardly they were. According to Harold, the leader of the bad people told Steve if he didn’t shut up, he’d kill Sam. Steve didn’t shut up. The leader killed Sam.

Seventy-four years later, Harold Fogler related this story for the first time while on his death bed. Then Harold’s heirs sued Captain America claiming that Cap wrongfully caused the death of their uncle Sam when he didn’t stop talking. Jennifer Walters represented Cap and Matt (Daredevil) Murdock represented the Foglers.

Matt introduced Harold’s deathbed statement as his main evidence. He also called Cap to the stand. Cap admitted that everything Harold said was true. And with that the plaintiffs rested their case. (And promptly lost, by the way, because the plaintiffs never introduced any evidence covering what damages Sam’s death caused his great-grandnewphews, so the jury couldn’t award them any money. But that’s another matter.)

Jennifer cross-examined Cap who told the jury his side of the story. It was basically the same as Harold’s side but it added two important things that Harold left out. First, the “bad people” were Nazi saboteurs and American fifth columnists working with the Nazis. Second, the leader didn’t threaten to kill Sam. He said, “Stop talking or someone will die.” Steve didn’t stop talking and the leader told Steve, “I should kill you.” But he didn’t want to kill Steve. He regarded Steve as weak and wanted Steve to marry and have kids so as to infect his country with his weakling genes. So the leader killed the “strong one,” Sam.

And there’s the difference: in Cap’s account, the leader didn’t threaten to kill Sam, he threatened to kill someone. Steve thought the leader was going to kill him, so didn’t know his talking would cause Sam’s death. That being the case, Steve didn’t act negligently in continuing to talk, so didn’t wrongfully cause Sam’s death.

The case became what, I used to call a swearing match when I was lawyering. No, I don’t mean the witnesses got on the stand and started cussing; although that happened often enough. No, it means one side’s witnesses testify and swear the events happened one way. The other side’s witnesses testify and swear they happened another way. Then it was up to the jury to decide which side’s swearing it believes.

She-Hulk was worried about the case. Steve couldn’t verify his version with any records because the matter had been classified. I think She-Hulk was over-thinking the case and worrying for nothing. Personally, I think it could have been the shortest closing argument in history. “Hey, jury, you have two versions of the story. One from a fifth columnist Nazi saboteur and terrorist, the other from Captain America. Who are you going to believe?” But She-Hulk worried. Probably because, lawyers believe their clients are lying, and she feared the jury would too.

Cap had anticipated She-Hulk’s doubts. But he needed She-Hulk to believe in his veracity, so that she could convince the jury of his veracity. So he had She-Hulk’s investigator, Hellcat, break into a government facility and steal the classified documents. He gave them to She-Hulk to prove he was telling the truth. But he told She-Hulk she couldn’t use the documents in trial.

Let me get this straight. Cap had no problem with Hellcat breaking into a government facility and stealing classified documents, but had qualms about introducing them in court? Hey, Cap, I have a suggestion for you. Should this happen again, call your contacts at S.H.I.E.L.D. or the White House and have them declassify the documents. They were seventy-four years old, for crying out loud, and had only been classified because back in the 40s, the government didn’t want the American people to know that “Nazis were working on U.S. soil.” Seventy-four years later, the government wouldn’t even care about this secret anymore. They would have declassified the documents for you in a second. Then you could have used them at the trial.

Anyway, armed with her new-found confidence in Cap’s veracity, She-Hulk gave an impassioned and convincing – because she was convinced herself – closing argument. She said exactly what I said in my version of the closing argument. Only longer. And the result was …

Actually, I don’t know the outcome of the case. Right as the forewoman of the jury was saying “We find the defendant…” the story cut to a new scene. I can’t tell you whether the jury found the defendant guilty or not guilty. Which is good. That way I don’t have to issue a spoiler warning.

So, I can’t tell you what the jury decided. I can, however, tell you this; despite what the forewoman started to say, the jury didn’t find the defendant either guilty or not guilty. This was a civil trial, remember. Juries don’t find defendants guilty or not guilty in civil cases. They either find for the plaintiff or find the defendant. But guilt doesn’t enter into their deliberations.

One little follow up and for this I do have to issue a

SPOILER WARNING!

Cap deduced that someone was behind this plot against him. Someone who wanted to discredit Cap and tarnish his reputation. Someone who convinced Harold to come forward after all this time, then convinced Harold’s heirs to sue Captain America, and leaked other evidence in the case. That someone was Dr. Faustus. So Cap, She-Hulk, and Daredevil fought their way past Dr. Faustus’s guards and into Dr. Faustus’s hideout, where Cap punched out Faustus cold.

Which created a whole new problem for She-Hulk. Cause when Dr. Faustus sues Cap for assault and She-Hulk represents him, if Cap denies his involvement, she won’t just assume he’s lying, she’ll know.

BOB INGERSOLL: THE LAW IS A ASS #337: THE TEEN TITANS ARE GUN SHY

Columns / The Law Is A Ass
December 20, 2014

Once upon a time there was a very bad man who attempted to commit an armed robbery but chose his victims poorly: Bunker and Beast Boy of the Teen Titans. Although Bunker and Beast Boy subdued the mugger, he got off scot free because neither hero bothered waiting for the police. They just left the would-be mugger lying in the park and walked away. So the police had no evidence with which to charge the very bad man and no witnesses with which to try him for his very bad crimes.

That’s how we left things in Teen Titans v 5, # 3, when last I wrote about the book. I wrote about how wrong it was for Bunker and Beast Boy to walk away and left the matter there. Then promptly went to Florida. Let’s face it, Disney World, The Wizarding World of Harry Potter, and Key West are more fun than reading many of DC’s New 52 comics.

I knew I had left something out of the discussion. I did so intentionally. It would have taken the column into an area which was tangential to the point I wanted to make and would have required another 1,000 words to cover. I decided not to follow said tangent or add another 1,000 words to the column. I figured you’d put up with me long enough for one week.

Since that column two things have happened. First, some readers of this column – yes I do have some readers, two is some – asked me about the point I had left out of the first column. Second, today I started a new column with a new 1,000 words I have to fill up with something. So why shouldn’t that something be the question that those readers asked me, “What about the gun?”

The gun. That little revolver – one so little that Bunker actually mocked it – that the mugger possessed. It may not have been a big gun, but could it cause a big problem for our mugger? See, this mugging happened in New York City. And, unless the lyrics of New York, New York are lying, New York City is part of New York state, the home of the infamous Sullivan Act.

The Sullivan Act is a New York state gun control act. It took effect in 1911, making it one of the oldest gun control statutes in the country. It required anyone who carried a firearm small enough to be concealed to acquire a license for it. Possession of an unlicensed firearm was a misdemeanor. Carrying an unlicensed firearm was a felony.

The act was named for state senator Timothy Sullivan, who was described with the redundant phrase, a corrupt Tammany Hall politician. Sullivan’s supporters claimed he sponsored the law from his desire to bring firearms under control. His detractors said he wanted to make sure his personal bodyguards could be armed and have a way to get rid of political rivals, with accounts of Sullivan having the police put unlicensed guns in his enemies’ pockets and carting them off to jail. Back in the corrupt days of Tammany Hall, the police did more planting than a botanical gardener.

So, the mugger was subject to the Sullivan Act, which prompts the question; Was the mugger’s firearm licensed? Probably not.

In New York City, licenses go to retired police officers, celebrities, and other people with connections; but regular people need not apply. Well, they can apply, but the odds of them getting a license are worse that the odds of 62-year-old, overweight me quarterbacking the Cleveland Browns next week. So, it’s unlikely that a scuzzy looking mugger got a license to carry a firearm.

Actually, a new version of the criminal possession of a firearm law went into effect in New York in March of 2013 and it might make it illegal for people to carry any firearm. It depends on how the statute with its multiple clauses is interpreted. But let’s not even go there.

For the sake of keeping this column simple, we’ll assume the mugger’s gun wasn’t licensed. So, wouldn’t the police have been able to convict him of this crime, even if they couldn’t get him for mugging? Probably not. For a couple of reasons.

First, there is the question of whether the original Sullivan Act or this new firearm possession law is constitutional. In the 2010 case McDonald v. Chicago, the Supreme Court ruled 5-4 that the Second Amendment applied to the states through incorporation of the 14^th Amendment’s Due Process Clause and struck down an Illinois statute criminalizing the possession of firearms. So the Sullivan Act and its progeny may not last much longer. If it goes, so would our mugger’s conviction for possession of a firearm after an appeal. But his case isn’t likely to get as far as the appeal.

Our poor beaten-up mugger probably won’t get to appeal his conviction for possession of a firearm for the simpler reason that he probably won’t get charged with possession of an unlicensed firearm in the first place.

After Bunker hit the mugger, the firearm went flying out of the mugger’s hand. It landed on the ground somewhere in the area, but it was not in the mugger’s possession. So, when the police found the mugger lying all alone, he didn’t possess the firearm.

The police would have no way of proving the mugger had ever possessed the firearm. Sure they got a phone call from someone who said a person had tried to rob him in the park. But when the police arrived, they found a guy lying in the park and didn’t find the purported victims. The police had no way of proving that the man they found lying on the ground was the man some anonymous telephone call said was a robber. He could have been some poor homeless drunk sleeping one off in the park or another victim of the mugger or a renegade Scientologist communicating with Xenu. They couldn’t arrest the man because, while they may have had speculation, they had no probable cause.

And stop saying fingerprints. The police couldn’t test the gun for fingerprints and compare any found to the man’s fingerprints. Remember, the police had no probable cause to arrest him. If the police couldn’t arrest the man, they also couldn’t obtain the man’s fingerprints and compare them to any that were found on the gun.

So let that be a lesson to all you comic book writers out there. If you write a big old fight scene, or even a little one-page fight scene, after it’s over make sure the hero or someone is around who would be able to testify that the bad guy was the guy who actually did something bad. Otherwise, all you’ll have written is a scene full of sound and fury that signifies nothing.

And after reading many of the New 52 books, I’ve already got plenty of nothing.

Bob Ingersoll: The Law Is A Ass #336: The Practice Makes Imperfect

Columns / The Law Is A Ass
December 12, 2014

I don’t care what the old saying says, in this case The Practice makes imperfect.

David E. Kelly, the creator, producer and head writer of such shows as Picket Fences, Ally McBeal, and one – mercifully – unsold Wonder Woman pilot was a practicing attorney in Boston, before he moved to Hollywood to become the creator, producer and head writer of such shows as Picket Fences and Ally McBeal. An interesting choice leaving the law for Hollywood producer. It’s one of the few career moves that wouldn’t be regarded as a step up.

One of Kelly’s biggest TV successes was The Practice, a show about a struggling criminal-defense and plaintiff’s personal injury law firm in Boston It was a show firmly rooted in Kelly’s own past, and a show which won both the Emmy and the Golden Globes award for best drama. By all accounts, it was a high-quality show.

I couldn’t watch it.

I tried, but I just couldn’t. Kelly seemed to forget his lawyer past in The Practice, and, as a result, we were condemned because he couldn’t repeat it. The show frequently opted for the highly dramatic in its situations and portrayals of the law, instead of the legally accurate. The Practice got the law so wrong, that, for me, it was more infuriating than entertaining.

Case in point: the January 5, 1998 episode “Line of Duty.” Bobby Donnell, the lead lawyer of the series played by Dylan McDermott, was sleeping with the enemy, in this case in the case in point, said enemy was prosecuting attorney Helen Gamble played by Laura Flynn Boyle. One night, while sleeping at Helen’s, Bobby learned the police were about to raid the drug house of a major drug dealer and arrest him. Problem for Bobby was said drug dealer was Bobby’s client. Bobby called his client to warn him of the impending raid and told the client to clear out and not be arrested. Then the problem for Bobby became the client decided to fight it out instead of clearing out and in the ensuing gun battle between drug dealers and police, a cop was killed.

So, ultimately the problem for Bobby was he found himself being prosecuted for aiding and abetting the murder of a cop. Surprisingly enough, we in the legal profession actually have a term for when this sort of thing happens; it’s, “Oh, this is not good.”

Aiding and abetting is a crime legislatures enact to keep people from helping criminals. It says that if you help a criminal commit a crime, you’re as guilty as the criminal who actually committed the act, even if you didn’t commit it yourself. In Massachusetts General Law Chapter 274 § 3, they call it being an accessory before the fact, but it’s the same thing. In Bobby’s case, the prosecution claimed that by warning his client of the impending arrest, Bobby helped him resist arrest so was equally responsible for the murders which occurred during the arrest.

Bobby had a normal defense he could have used. The law specifically says, “Whoever counsels, hires or otherwise procures a felony to be committed.” Bobby did none of these. He didn’t want his client to resist arrest or kill any police officers. All he wanted his client to do was clear out of his house so that he wouldn’t be arrested. Had he argued to the jury that he didn’t counsel his client to resist arrest or kill cops, a perfectly appropriate and legal defense, he probably would have been acquitted.

But Bobby didn’t argue the appropriate, even legal, defense to his case. That wouldn’t have be dramatic. Instead Bobby argued that under the Code of Professional Responsibility he had a duty to represent his client zealously, so he had an ethical obligation to inform his client of the impending raid. Bobby argued what he did wasn’t illegal but sanctioned by the law.

Guess what? It ain’t.

Oh, it’s true that Canon 7 of the Code of Professional Responsibility says, “A lawyer should represent a client zealously within the bounds of the law.” It is also true that zealous representation would include informing a client of things that could be injurious to the client. But there’s a catch in this legal obligation. It’s those pesky words, “within the bounds of the law.”

What that means is simple, a lawyer can’t break the law under normal circumstances and also can’t do it while representing a client. Indeed, the Code of Professional Responsibility specifically says a lawyer cannot knowingly engage in illegal conduct while representing a client. So, if warning his client about the impending arrest was be illegal, then Bobby had no ethical obligation to warn the client, because the Rules of Professional Responsibility require that a lawyer act within the boundaries of the law.

Would warning a client of an impending arrest be against the law? Do orcas poop penguins?

Every jurisdiction I know of has some sort of obstruction of justice law on its books. As I know of the jurisdiction of Massachusetts, it safe to assume Massachusetts has such a law. However, it’s even safer to check the Massachusetts General Laws to be sure. So I did. Chapter 274 § 4 of the Massachusetts General Laws, the accessories after the fact law, makes it a crime for someone to assist a person who has committed a felony, “with the intent that he shall avoid or escape … arrest.” Which brings us back to our problem child, Bobby.

He warned a client, not just a client but a felon, that said client was about to be arrested so that the felon could escape arrest. That’s a violation of the accessory after the fact law. So, under the Code of Professional Responsibility dictate that a lawyer act within the boundaries of the law, the fact that warning his client of an impending arrest would break the law obviated any duty Bobby thought he had to warn his client.

Still, Bobby made his argument that he had an ethical obligation to tell his client he was about to be busted. Worse the judge presiding over the case bought the argument and dismissed the charges against Bobby. Not surprising from a dramatic point of view, had Bobby been convicted, the show about his struggles to be a successful personal injury attorney would have ended. It’s kind of hard to chase ambulances within the confines of a 6 by 8 prison cell. But it was totally inaccurate from a legal point of view.

The outcome of Bobby’s case brings up another question. If Bobby didn’t know he had no ethical obligation to warn his client and the judge didn’t know Bobby’s argument was flawed, then what’s the deal with the Massachusetts legal system? Are Bostonian lawyers and judges participating in a totally different kind of Boston tea party? Maybe. That could be the reason judges and lawyers are always so high and mighty.

Author’s Note: Because of the Thanksgiving work week, which significantly shortened my work week this week, I took a column I once wrote as part of an introduction to a “The Law Is a Ass” book I was pitching back in the late 90s, edited it to bring it up to date and made it a stand alone column. But that’s why you’re suddenly getting a column about a 1998 TV show.

Bob Ingersoll: The Law Is A Ass #335: THE TEEN TITANS FLUNK CIVICS

Columns / The Law Is A Ass
November 21, 2014

Once upon a time, there was a very bad man who got caught committing armed robbery. Caught red handed. But the very bad man was never brought to trial. Never convicted. Never even arrested. In fact, the bad man got away scott-free.

And no one lived happily ever after.

Except for the very bad man.

I wish this were only a fairy tale. It isn’t. (Isn’t, that is, if we pretend the adventures of the Teen Titans are real and not, in themselves, fairy tales. But if you grant me that little wish, then this story, unlike those stories where wishes are actually granted, isn’t a fairy tale.)

It was all there in cyan, magenta, yellow, black, and white in Teen Titans v 5, # 3. Beast Boy and Bunker were walking around New York’s Battery Park (which is a park in lower Manhattan and not the answer to that age-old question, where do you park your batteries). They were minding their own business when the very bad man pointed a gun at them, and demanded they empty their pockets.

As I doubt this was the preamble to a street magic act and the very bad man wasn’t about to produce a piece of paper inside a sealed envelope on which he had previously written the exact contents of Beast Boy’s and Bunker’s pockets, I must assume the very bad man was about to commit armed robbery. That’s what made him a very bad man.

Neither Beast Boy nor Bunker were inclined to give the very bad man the contents of their pockets, especially as they were both in costume so didn’t have any pockets. So instead, Bunker formed a massive psionic brick fist and punched the very bad man somewhere into the next panel. Bunker then said, in a rather self-congratulatory tone, “Far as I see it, I was doing my civic duty!” Bunker called the police on the cell phone he got from somewhere, but not his pockets as he didn’t have any, and told them, “A man tried to mug us in Battery Park. Oh no, he’s caught. No he won’t be going anywhere.” Then Beast Boy and Bunker calmly walked away from the scene of the crime, leaving the battered very bad man lying on the ground behind them, while Bunker said, with no small amount of pride, “See? One less criminal loose in New York. Already the streets feel safer!”

Bunker may have thought he was doing his civic duty, but his civic duty apparently included flunking middle-school Civics class. Let us, then, examine Bunker doing his civic duty from the perspective of a middle school civics class. Who can tell me what Bunker and Beast Boy did wrong?

Anybody? Anybody? Bueller?

That’s right, Beast Boy and Bunker walked away from the scene of the crime before the police arrived. When the police got there, they found the very bad man lying battered on the ground and no one else around to give them a statement. At which point, the police helped the very bad man to his feet, asked him whether he was all right, inquired whether he wanted to press assault charges against whoever hit him, and then let the very bad man go on his merry way.

The police don’t know who called them to report the mugging. They didn’t know who to seek out for a statement about the incident. They didn’t know who the victim of the alleged mugging was. They didn’t have anyone to call as a witness in the very bad man’s trial.

Without any witnesses to call and testify about what happened, the police and the prosecution had no evidence to prove that the very bad man tried to rob anyone. Without any evidence, the police and prosecution couldn’t possibly get a conviction. There wouldn’t have been any point in bringing the very bad man to trial. In fact, without anyone around to give a statement, the police didn’t even have anyone to press charges, so they couldn’t even arrest the very bad man.

And, no, the police couldn’t testify that they received a phone call reporting a mugging and found the very bad man at the site of the reported mugging with a gun lying next to him. Not without violating the Sixth Amendment, they couldn’t have.

The Sixth Amendment guarantees all defendants in criminal trials the right to confront the witnesses against them. That means they get to cross-examine the people who accused them of whatever it was they were accused of doing. In the case of our very bad man, it would mean he would get to cross-examine the people who accused him of mugging them.

If the police tried to testify about the anonymous phone call that reported a mugging, the defense attorney, even a bad defense attorney – you know, the kind who airs low-budget commercials with doggerel rhyming slogan in between late-night infomercials – would know to object to the testimony as hearsay. The police would be testifying about someone who wasn’t in court and told them that the very bad man tried to mug them in order to prove the very bad man did, indeed, try to mug someone. That’s the very definition of hearsay, an out of court statement made by someone other than the witness in order to prove the truth of the matter asserted in the statement.

At least, that’s what I said the definition of hearsay was three columns ago, and I don’t think it’s changed in the past three weeks. Let me check…

Nope, it hasn’t. So the police wouldn’t be able to testify about the anonymous phone call and there would still be no evidence to prove the very bad man guilty of anything.

Tony Isabella once told me he always had his obligatory fight scenes take place in front of lots of people other than the masked super heroes for just this reason. So there would be lots of witnesses who could testify as to what the very bad men in his stories did and the very bad men would go to trial and would be convicted.

So, once upon a time, there was a very bad man who committed armed robberies only against people who flunked middle school civics. The very bad man enjoyed a long and prosperous career. And he lived happily ever after.

The end.

BOB INGERSOLL: The Law is A Ass #334: THE FALL OF THE FANTASTIC FOUR; THE WINTER OF MY DISCONTENT

Columns / The Law Is A Ass
November 14, 2014

I have no idea what happened in this comic.

The trial shown in Fantastic Four v 5 # 5 started because some creatures escaped from the pocket universe created by Franklin Richards and wreaked havoc on Manhattan. A bunch of citizens upon whom havoc had been wreaked sued the Fantastic Four in a class-action suit. Had that been the extent of the trial, I would have had no problems. But somehow the trial morphed into something so unrecognizable that I became gobsmacked and I found myself spouting British slang instead of simple American words like nonplussed or flabbergasted.

And I found myself unable to understand what happened in the comic.

What I do know – what I was able to understand – was that what had been a simple class-action suit for damages had become a “hastily formed” “special judicial inquiry.” What kind of “special judicial inquiry?” I don’t know. It can’t be a civil case, because opposing counsel was prosecutor Aiden Toliver and prosecutors appear in criminal trials.

In civil trials you have plaintiffs and defendants v. In criminal trials you have prosecutors and defendants. If prosecutor Toliver is the FF’s opposing counsel, it would appear that the civil class-action case had become a criminal case.

How? A civil case can’t just become a criminal case, they’re entirely different types of cases with entirely different burdens of proof. Remember O.J. was tried in a criminal case for murder and found not guilty because the prosecution couldn’t prove his guilt beyond a reasonable doubt? Remember how he was then sued in a civil court for wrongful death where the jury found, by a preponderance of the evidence, that he had committed the murders? His criminal case didn’t suddenly become a civil case. He had two trials. Trials in the plural.

I suppose that while the class-action lawsuit against the FF was being prepared, some party became alerted to the FF’s history and brought criminal charges against them. But that would have been a separate case and a separate trial, like O.J.’s trials – trials plural – were. So what happened to the civil case? It didn’t just become the criminal case, as the story implies.

Also the FF’s trial can’t be a criminal case. In the United States, the Fifth Amendment absolutely forbids the prosecution from calling the defendants as witnesses in its case in chief. Yet Prosecutor Toliver called Reed Richards, Ben Grimm, Sue Richards, Johnny Storm, Reed Richards again, and then Sue Richards again as prosecution witnesses. He called more defendants than a bailiff in the arraignment room. So it must be a civil case for damages not a criminal case.

Except, in the end the judges presiding over the trial – yes, judges, there were clearly three of them sitting at the bench – didn’t award any civil damages that I saw. Instead, the judges evicted the FF from the Baxter Building and took custody of the Richards’ children and the other children of the Future Foundation and put them in the care of S.H.I.E.L.D.

Only I don’t see how that could have happened. If the case was a civil damages suit, the trial court wouldn’t have had jurisdiction over the question child custody. That would have been the purview of Family Court, and that court wasn’t involved in the case at all, that I could see.

Now, I suppose forfeiture of the FF’s custodial rights and eviction from their home could have been conditions of probation http://legal-dictionary.thefreedictionary.com/probation. But that would mean that the case was a criminal case, that the FF was convicted, and that they were put on probation. That might work. (Are you starting to feel like you’re watching a Tennis match here?)

Yes, a criminal case. The case couldn’t have been a civil case, because there were three judges. In the United States, when a civil trial waives a jury and tries the case to the judge, the judge who hears the case is the judge presiding over the trial. That’s judge in the singular. Civil trials don’t normally have three-judge panels.

Of course, criminal trials don’t even have three-judge panels for the most part either, unless it’s a death penalty case. This wasn’t a death penalty case. At the end of the day, the FF was evicted from the Baxter Building, but they weren’t relocated to Death Row. Or even to Def Jam.

Wait, a criminal case with a three-judge panel. And the cover copy said “Accused: Crimes Against Humanity!” Was the FF being tried in the International Criminal Court, or as it’s more commonly called the World Court? Maybe. The World Court does conduct its criminal trials before a three-judge panel with a prosecutor representing the plaintiffs.

But, if it was the World Court, then why was the trial being held in “Manhattan’s central courthouse,” and not the World Court building in The Hague? Possibly, because Article 3 v of the Rome Statute, the multi-national treaty which created the World Court, says that, “The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.” Most of the witnesses – which mostly seemed to be the FF itself – lived in New York. I could see the World Court relocating this trial to New York as being more convenient to the participants.

That’s it then, the FF was being tried for crimes against humanity in the World Court. Crimes such as, oh what heinous acts did Prosecutor Toliver ask them about? Minor physical damage caused by the Invisible Woman. Property damage caused by The Thing. Property damage caused by the Torch. Property damage caused by fighting the Hulk in Manhattan. Not helping S.H.I.E.L.D. or some other agency trap Namor so he could be tried for war crimes. Not sharing what they knew about the Inhumans with any branch of national security. Letting Reed and Sue’s daughter Valeria live with that known terrorist Dr. Doom. Misplacing the Ultimate Nullifier. Letting Annihilus and Blastaar and other such nasties come out of the Negative Zone portal to attack New York City. Sue causing a riot and destruction in New York after she had been brainwashed by the Hate-Monger and adopted the name Malice. Oh yes, and Ben Grimm, in a fit of pique, destroying the taxi cab of one Mr. Dupois and the FF’s lawyers failed to make reparations in a timely manner.

So that, property damage and negligence is how prosecutor Toliver defines crimes against humanity. Know how Rome Statute defines it? “[P]articularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of human beings.” Crimes against humanity are also the acts of government, not men. Okay, men do the acts, but do so either as part of a government policy or with the approval of the government. Crimes against humanity include such things as murder, massacres, extermination, human experimentation, slavery, cannibalism, torture, rape, persecution and other inhuman acts. They don’t include forgetting to throw the dead bolt on the Negative Zone hatch.

That being the case, the case wasn’t a trial in the World Court for crimes against humanity, either.

So what was it?

I’d like to say, “Ah’m so corn-fused.” But I’m not Li’l Abner. If I can’t go with the Al Capp ending, I’ll go with an aria da capo ending.