Category: The Law Is A Ass

The Law Is A Ass


SheHulk3Let’s see now, where were we before we were so rudely interrupted? Interrupted by me when I realized last week’s column was long enough, so decided to split it into two columns. Oh yes, She-Hulk V 3 # 9.

She-Hulk v 3 # 9 is Part Two of the three-part story, “The Good Old Days.” The titular good old days refer to a dock riot in Los Angeles in November of 1940, if that’s “good,” I think someone needs to invest in a new dictionary. The good old days also refer to the fact that during the incident Sam Folger died and now the grandchildren of Sam’s brother, Harold, are suing Steve (Captain America) Rogers for the wrongful death of their great-granduncle. Again, “good?” If you can’t afford a new dictionary, then at least bookmark

Jennifer (She-Hulk) Walters was representing Cap and Matt (Daredevil) Murdock was representing the Foglers. Matt began his trial with the testimony of Officer McKinley, who told the jury what Harold Fogler said on his death bed sometime in 2014. Here’s Harold’s deathbed confession, as recounted by Officer McKinley.

In 1940, Harold left his mother and brother back in Brooklyn and moved to Los Angeles. He fell in with a bad crowd. In early November, 1940, the bad crowd met in a warehouse near the Los Angeles docks to plan some trouble they were going to cause there. Harold stepped outside for some air where he was confronted by his little brother, Sam, who had left medical school and come across the country to accost Harold. Sam urged Harold to come back home to their heartbroken mother. Sam brought a friend with him, Steve Rogers, who was still in his pre-Captain America days.

Steve also started in lecturing Harold. And wouldn’t stop. Not even when the bad crowd hauled them into the warehouse. The boss tried to shut Steve up by pointing a Luger at Sam and threatening to kill Sam, if Steve kept talking. Steve kept talking. The boss killed Sam.

Now based on this account of what happened in Los Angels in 1940, Harold Fogler’s grand children were suing Steve Rogers, A.K.A. Captain America, for the wrongful death of their great-granduncle. They said Steve’s “wrongful act” and “neglect” caused Sam’s death.

I say what wrongful act or neglect?

In all U.S. jurisdictions including California, a negligence suit such as wrongful death has four basic elements which must be proven. The defendant must have owed the plaintiff a duty. The defendant must have breached that duty. The breach must have been the proximate cause of some injury to the plaintiff. And the plaintiff must have been damaged by said injuries.

I’ll tackle the injury element first, because it’s the easiest. Sam was killed. He suffered an injury. Death. Death’s the ultimate injury. But did Sam’s family suffer any damages from that injury?

But Sam’s not suing. He’s dead. I’m not so sure how Sam’s injury translates to Sam’s great-grandnephews. The family maintains that Sam would have become a doctor, a successful surgeon and provided for Harold’s family. But can they prove that?

Yes, Sam was in medical school but no one knows Sam would have become a doctor. He could have flunked out. It was 1940, so he could have been drafted and died in World War II. If Sam survived the war and became a doctor, maybe he would have practiced in some rural community in Appalachia where his patients paid him in pigs. Even if Sam had become the greatest and richest surgeon in the history of the United States, he had no legal obligation to provide financial assistance to his brother, his brother’s children, or his brother’s grandchildren. Any financial damages in this suit were speculative. At best.

Speculative damages was only the bad news for the Fogler family. The worse news was that as difficult as proving damages would be, that’s the least of their worries.

The Foglers had to prove Steve had a duty to Sam Fogler and that Steve breached his duty. We know Steve didn’t breach a duty by killing Sam, because the boss killed Sam. The Fogler’s theory of breach of duty was that Steve had a duty to stop talking when the boss threatened to kill Sam and by continuing to talk, Steve negligently caused Sam’s death. As far as I understand the law, Steve had no such duty and, thus, didn’t breach such duty.

The bad crowd committed several crimes against Steve and Sam. Kidnaping. Criminal Threats. Probably more. But those are enough for our purposes, I say in a blatant attempt to limit the amount of research I have to do. No one has a duty to submit to a crime.

If criminals running a protection racket threaten to bomb a store unless the owner pays them money, the owner has no duty to pay the criminals money. If the owner refuses to pay and the criminals bomb the store killing one of the store’s employees, the owner is not liable to the employee’s family for wrongful death.

The owner had no duty to submit to the criminals’ extortion demands. And, because he had no duty to submit, he did not negligently cause the employee’s death by breaching a duty. One can’t breach a duty one didn’t have in the first place. Indeed, most jurisdictions would call the owner a hero for standing up to the extortionists, not a tortfeasor who caused a wrongful death.

The owner’s refusal to pay protection may have resulted in the employee’s death, but it didn’t cause the employee’s death. The only people who caused the employee’s death were the criminals who committed the superseding, intervening act of intentionally bombing the store. They’re the only ones who should be sued for wrongful death.

In the same way, Steve had no duty to submit to the gang’s threats. So there’s no breach of a duty in his acts. Moreover, Steve’s refusal to submit didn’t cause Sam’s death. The boss, a superceding and intervening cause, caused Sam’s death by intentionally shooting him. The Folgers’ case is weak, on three of the four elements for negligence. Steve didn’t breach any duty to Sam by his actions. Steve’s actions didn’t cause Sam’s death. And any monetary damages Sam’s great-grandnephews may have suffered are, as I said earlier, speculative.

Personally, I can’t imagine why any lawyer agreed to take the case in the first place. I especially can’t see why Matt Murdock agreed to take the case. The world now knows that Matt is Daredevil. Matt was just disbarred in New York for, among other things, agreeing to represent a man who wanted to sue Daredevil despite the massive conflict of interests that’s inherent in suing yourself. I can’t imagine why Matt would set himself up for another potential conflict of interests complaint – not to mention a legal malpractice – by agreeing to sue one of his best friends. That’s hardly, as the Code of Professional Responsibility put it, avoiding the appearance of impropriety.

The story tried to explain why Matt agreed to take the case. It was because Steve asked him to take the case. According to Matt, Steve argued, “if I’d ever been his friend, if I cared about what he’d done as Captain America, then I wouldn’t pull my punches.” I don’t buy it. The explanation, that is. I bought the comic. Don’t go accusing me of shoplifting.

I don’t care if Steve and Matt were BFFs, field trip buddies, and even prom dates, Matt shouldn’t have fallen for Steve’s friendship guilt trip by taking the case. Matt should have told Cap, “I can’t take the case. It’s a violation of my professional ethics. And if you’ve ever been my friend, you wouldn’t put me into this situation by asking me to commit malpractice.”

Well that’s it for Part Two of “The Good Old Days.” I promise I won’t write about She-Hulk V 3 # 9 next week. But as it was only Part Two of “The Good Old Days,” I can’t promise that I won’t write about She-Hulk v 3 # 10 and Part Three of “The Good Old Days” in a few weeks.

Can’t promise? I can practically guarantee it.

The Law Is A Ass


She-Hulk_Vol_1_8_TextlessSorry, but if your bucket list included “Read a comic book that has an explanation of the dying declaration exception to the hearsay rule on Page One,” you can’t cross it off your list yet. Because, despite what you read in She-Hulk v 3 # 9, you still haven’t read a comic book which has an explanation of the dying declaration on Page One.

She-Hulk v 3 # 9 is the middle chapter of a three-part story about Steve (Captain America) Rogers being sued for wrongful death in Los Angeles over an incident that happened on the L.A. docks in the year 1940. Cap was represented by Jennifer (She-Hulk) Walters and the Foglers, the family suing Cap, were represented by Matt (Daredevil) Murdock. Chapter One in issue 8 was the set-up. In issue 9, the middle chapter, the trial is about to begin.

So there on Page One Matt was giving his opening statement to the jury and defined the dying declaration exception to the hearsay rule for them. He told the jury that ordinarily a person may not testify about “what they heard someone say,” because it’s hearsay. Which isn’t accurate. I mean, come on, Matt used a simple sentence composed of only one- or two-syllable words. When has the law ever expressed anything with a simple sentence using only one- or two-syllable words?

The California Evidence Code defines hearsay in Section 1200 and it’s more complex than Matt let on. California defines hearsay as “a statement that was made other than by the witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” In order for a statement to be hearsay, it must 1) have been made by someone other than the witness, 2) must have been uttered outside of the courtroom, and 3) must be offered into evidence in order to prove the truth of the fact contained in the hearsay.

Let’s see if I can’t translate that into some simple sentences that use words of only one or two syllables for you. First, the statement must be an out-of-court statement. That’s easy, if a witness says something in court than it isn’t hearsay, it’s testimony.

(Damn! “Testimony.” Four syllables. Okay, I can’t use words of only one or two syllables. Some polysyllabic words will sneak into my explanation. But I promise they’ll be simpler polysyllabic words than polysyllabic.)

Second the statement must have been made by someone other than the witness who’s testifying. If Linus is a witness, he can testify as to what he told Lucy even if he said it when he wasn’t in the courtroom, because he’s the witness. But Linus can’t testify as to what Lucy told him.

The reason for this second prong of the hearsay definition is because if the person who actually made the statement isn’t testifying, that person’s demeanor can’t be seen and evaluated by the jury and the person can’t be cross-examined. (By the way, we call the person who made the statement the declarant in the law game and consider ourselves as having been pretty straightforward for using only a three-syllable word.) So, if the witness, Linus, testifies as to what the declarant, Lucy, told him, Lucy, isn’t subject to cross-examination and the statement is excluded as hearsay. But if Linus is testifying as to what he told Lucy, then Linus – the declarant – is available to be cross-examined and the statement isn’t hearsay.

The third and final prong of the hearsay definition is that the statement is being offered for the truth of the matter asserted in the statement. If Lucy and Linus were in a car accident then, later, Charlie was talking to Linus and said he saw the accident and that Lucy ran the red light, Linus could not testify as to what Charlie said in order to prove that Lucy ran the red light. That would be using the statement to prove of the matter asserted; that Lucy ran the red light.

Matt may have given the jury an over-simplified version of hearsay, but that wasn’t the worst of his sins. Matt next told the jury that he was about to offer testimony about a dying declaration, which is admissible because dying declarations are an exception to the hearsay rule.

Okay, that much is true. The hearsay has lots of exceptions. California wrote something like 18 exceptions to the hearsay rule into its evidence code. One of those exceptions, found in Evidence Code § 1242, was the dying declaration exception. Matt was correct when he said that dying declaration is an admissible exception to the hearsay rule. Had he stopped there, all would have been fine. Matt didn’t stop there.

Matt went on to explain that a dying declaration is, “when a person makes a statement believing they are about to die … that testimony is admissible, because of a long-held belief that people cleave to the truth on their deathbeds.” Wrong!

In the aforementioned California Evidence Code § 1242 – Aforementioned is a simpler polysyllable than polysyllabic, isn’t it? – a dying declaration is defined as a statement made by a person who believes he is about to die, “respecting the cause and circumstances of his death.” So not every statement a person makes on his or her death bed is a dying declaration. To be a dying declaration, it must be a statement made about the cause and circumstances of the person’s impending death.

For example, if Linus comes upon Charlie, who’s lying on the ground near death, and Charlie tells him, “I”m dying because Lucy pulled the football out from under me and I broke my neck,” that would be a statement made about the cause and circumstances of Charlie’s impending death. It would be a dying declaration and would be admissible as a hearsay exception.

If, on the other hand, Charlie were to say, “I’m dying, and Lucy’s stupid psychiatric advice wasn’t worth five cents,” it would not be a statement about the cause and circumstances of his impending death and would not be admissible as an exception to the hearsay rule.

This becomes important in our story. In the middle of Matt’s opening statement – after he gave the jury legally incorrect definitions of both hearsay and dying declarations but before he explained to the jury that the case was a wrongful death case – Matt called his first witness.

And I move into a brief aside, before I can move on to what’s “important to our story.” I know of no court which allows a plaintiff’s attorney to call a witness in the middle of his opening statement. The attorneys give their opening statements covering what their case is about and what they expect the evidence will prove and then they present the evidence. I don’t think even the allegedly uber-liberal of Los Angeles County disrupt normal courtroom proceedings by letting witnesses testify in the middle of the opening statements. But that, as I said, was an aside. Let us hie ourselves back to what’s important to our story.

What’s important to our story is that in order to introduce his dying declaration, Matt called police officer McKinley, who was in the hospital at Harold Fogler’s bedside as Harold lay dying. McKinley testified as to what Harold Fogler said from his death bed.

He shouldn’t have been allowed to, but he did. As we saw in She-Hulk v 3 # 8, Harold died sometime in 2014, three weeks before the trial in this story started. She-Hulk v 3 # 8 also informed us that Harold died of old age and natural causes while he was in his nineties. Harold’s deathbed statement was about how his brother Sam died on the docks of Los Angeles sometime in 1940 and how Steve Rogers was responsible for Sam’s death.

Harold’s deathbed statement wasn’t a statement about the cause and circumstances of his impending death, it was a statement about the cause and circumstances of his brother’s death some 74 years earlier. It was not a dying declaration as defined in the California Evidence code, so would not have been admissible as an exception to the hearsay rule.

You’re probably wondering exactly what Officer McKinley did say about Harold Fogler’s statement, how Cap caused the death of Sam Fogler, and why Harold’s grandchildren are suing Cap for the wrongful death of their great-granduncle. I’m afraid you’ll have to wonder a little longer. This column is already long and I’ve only covered what happened on Page One. I’m going to need another column to cover the other 19 pages of the story. But before I leave you in the To-Be-Continued limbo, I did have one more thought.

One more thought: as I explained the last time I wrote about this story, Cap has repeatedly told She-Hulk that he doesn’t want to win on a technicality, so he probably wouldn’t have let She-Hulk object to the not-really-a-dying-declaration-so-not-actually-an-exception-to-the-hearsay-rule on the grounds that Harold’s statement wasn’t a really dying declaration so wasn’t actually an exception to the hearsay rule. Personally, I don’t think that’s a technicality, I think it’s a lawyer doing her job. But what do I know? I’m not the lawyer who wrote the story, I’m just the lawyer who’s trying to make sense of it.

I’ve got the harder job.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #331: HE AVENGERS TAKE A.I.M. AT DIPLOMACY

Advanced_Idea_Mechanics_(Earth-616)_from_Secret_Avengers_Vol_2_3_001_(cut)I’ve been avoiding this one like the plague. Or The Stranger. Or other existential novels by Albert Camus. Read them in high school. Didn’t understand them. But, then, I didn’t understand some aspects of Avengers Assemble v 2 21, either. So I guess it’s onward.

Here’s what I can tell you. Spider-Girl, the Anya Corazón version– and don’t even ask about the May Parker Spider-Girl, who is the daughter of Peter Parker in either an alternate future or an alternate universe whose timeline started fifteen years before the main Marvel timeline, so May’s backstory is even more confusing than a Camus novel – came to the Avengers for help. New York had just experienced the Inhumanity event, when the Terrigen bomb exploded over Manhattan. The bomb’s mutating Terrigen mists covered New York and then, by way of the trade winds, covered the world even better than Sherman-Williams paint. The mist’s mutagenic properties either turned people who were latent Inhumans into super-powered Inhumans immediately or they formed Terrigenesis Cocoons around the latents where they would gestate and emerge with super powers later. (Terrigen Mists? Terrigen Bombs? Terrigenesis Cocoons? Gods, this is more confusing than Camus channeling Jean-Paul Satre.)

Anya’s social studies teacher, Mr. Schlickeisen, was one of the latents who went into a cocoon. Mr. Schlickeisen was taken to a hospital for observation. But someone stole both his cocoon and the cocoon in the bed next to him. Now Anya wanted the Avengers’ help in tracking down her missing teacher.

Most of the Avengers were busy battling Inhumans’ Inhumanity to man, but Spider-Woman and Black Widow went to help Spider-Girl find her teacher. Black Widow eschewed the suggestion that they go to the hospital where Mr. Schlickeisen had been. Somehow she knew – maybe it was her spy-der sense – that A.I.M. had taken the cocoons and where they had taken them.

Trouble is that A.I.M. wasn’t the Advanced Idea Mechanics of old. They were no longer the R & D branch of the terrorist organization Hydra. They were no longer a group of brilliant scientists who wore silly yellow beekeeper costumes and are dedicated to overthrowing all governments by technological means. At least not overtly. Seems a while back A.I.M. bought the Caribbean island of Barbuda and formed an internationally recognized government there. So now A.I.M. is a sovereign nation of scientists who still wear silly yellow beekeeper costumes and are dedicated to overthrowing all governments by technological means, but covertly. And that caused complications for the Avengers.

A.I.M. claims diplomatic immunity and officially the Avengers can’t approach them. Fortunately for the purposes of this story, Black Widow was a former spy who specialized in unofficial missions. So she and her Arach-Pack went to an A.I.M. temporary lab somewhere in the Meatpacking District in Manhattan’s lower West Side. They broke in and incapacitated most of the beekeepers they found. But this wasn’t some A.I.M.-less operation, the Arach-Pack kept one A.I.M. flunky conscious so they could interrogate him.

Which they were doing, when some twenty-one other A.I.M. operatives in the facility arrived, all aiming high-tech weaponry and took our heroines captive. Things looked bad for the Arach-Pack, especially when the A.I.M. leader showed up.

No the leader wasn’t A.I.M.y Semple McPherson. It was Kashmir Vennema, But is that name really any less silly? Kashmir Vennema? Who’s her brother Khamilhare Kolonic?

Kashmir told her underlings to kill the Avengers. She wasn’t worried about any consequences for killing three Avengers, because, A.I.M. has “diplomatic status,” and because under “castle law, the minute [the Avengers] busted in here I was entitled to confront [them] with lethal force.”

Things looked bad for the ladies. Did they escape? Were they killed? Well, that’s another story. Okay, it’s the same story, but it’s the story of another issue, because this issue was only the first part of a five-part story and it pretty much ended on this cliffhanger. So, in keeping with the story, I’m going to leave you hanging and go into the legal analysis stuff. (Okay, the Avengers weren’t killed. Duh.)

First, the castle doctrine. We discussed it last week and here it is again. You may remember, and if you don’t here it is again, the castle doctrine says people who are in their own house don’t have a duty to retreat before using deadly force to repel trespassers; as long as they reasonably fear the trespassers pose an immediate threat to inflict death or serious bodily harm. But unless the A.I.M. operatives were also living in this temporary lab somewhere in Manhattan’s Meatpacking District, this building was a place of business, not a dwelling. The New York castle doctrine found in PL § 35.15 limits application of castle law to one’s dwelling and doesn’t extend it to one’s place of business. So, the A.I.M.-moral bad guys didn’t have the right to use lethal force as soon as the Avengers trespassed into this not-a-dwelling. Moreover, as the Avengers were bound to chairs and seemingly helpless – so didn’t pose an immediate threat of death or serious bodily harm to anyone – lethal force was off the table even if some of the beekeepers did call it hive, err home.

Now how about the other claim, “diplomatic status?” Well, Ms. Vennema pronouncements of immunity law may have been as expansive as maternity pants.

Yes, ambassadors from foreign countries have diplomatic immunity, so can’t be arrested or prosecuted. Nor can members of the ambassador’s administrative or technical staff. But other members of the diplomatic mission – the service staff, the consular officers, the consular employees, and the like – don’t enjoy such diplomatic immunity. They can be arrested and prosecuted for crimes.

The story didn’t give us any indication of Ms Vennema’s status Or of the gunmen serving under her. We don’t know whether she and they were part of the diplomatic mission of Barbuda. But we do know is that they were engaged in some illegal activities – kidnaping people encased in Terrigenesis Cocoons and selling those cocoons to other interested parties. And they were doing it out of a nondescript building in the Meatpacking District of Manhattan.

If A.I.M. has a Barbudan embassy, it clearly ain’t a nondescript building in the Meatpacking District of Manhattan. So the people found inside this facility were not the embassy staff and I doubt they were part of Barbuda’s diplomatic mission. So they probably didn’t have diplomatic immunity.

Why do I conclude that these less-than-A.I.M.-iable individuals aren’t part of the diplomatic mission? Well think about what they were doing. They were stealing Terrigenesis Cocoons and the Inhumans who were inside said cocoons and selling some of those cocoons, and the Inhumans inside them, to other interested parties. In New York those acts would constitute kidnaping and, depending on what those other interested parties wanted to do with the cocooned people after they hatched, human trafficking. (Or would it be Inhuman trafficking?) It’s unlikely that A.I.M. would have anyone so obviously engaged in such obvious criminal as part of its diplomatic mission. Why? Because, if they were part of the diplomatic mission and were doing such obviously illegal things and got caught, it would be embarrassing for the government of Barbuda. Governments tend not to put the obvious criminals on their diplomatic missions.

So, if Ms. Vennema or her staff isn’t part of A.I.M.’s and Barbuda’s diplomatic mission, and they probably aren’t, they have neither “diplomatic status” nor diplomatic immunity. New York would be free to prosecute them to the fullest extent of the law for murdering the Avengers.

Hey, Kashmir, next time you want to cl-A.I.M. diplomatic status, you might want to check on your actual situation. If you don’t, you might find out your bosses have left you hanging out to dry. Like your sweatery namesake.

The Law Is A Ass


Batgirl_Annual_Vol_4-2_Cover-1_TeaserIt’s a strange power. Almost a mutant ability. Being right for the wrong reason.

Ask anyone who’s played a round of trivia with me, they’ll tell you. I frequently figure out the correct answer by making logical deductions from a known fact. Then, when I give my reasons for my answer, I’m told my “known” fact was incorrect. Still, I came up with the right answer. For the wrong reason.

Oh it’s a thing, all right. It exists. And for proof you have to look no farther than Batgirl Annual v 4 # 2.

In the story, Batgirl and Poison Ivy were investigating a large, fenced-in medical research compound in Kane County somewhere on the mainland just outside of Gotham City. Why they were there isn’t really important to this column. So I’m not going to bother explaining. That way I don’t have to write another spoiler warning.

What does matter to this column is that Batgirl and Poison Ivy cut through the chain link fence and forcibly trespassed in the compound. And what is even more important to this column is that the compound’s security guards came running out brandishing their weapons and warned, “You’re trespassing on private land. We have the legal right to use lethal force.”

Which is wrong. But it’s also right; just for the wrong reason. Oh, let’s see if I can make it easier.

Doe, a deer, a female deer.

Oops, sorry. Wrong simplification. Although maybe I should stick with it. I’m trying to explain self-defense law. And that’s a long, long way to run. See, self-defense has more twists, turns, and convolutions than a mountain road, a plate of spaghetti, and your small intestine. Combined.

When someone attacks you, you have the right to defend yourself and you have the right to use the same amount of force as is being used against you. So, if you’re being attacked with lethal force, you can use lethal force to defend yourself. You can even use a force that’s more potentially lethal than the lethal force being used against you. That’s why, in the words of Sean Connery, you can bring a gun to a knife fight. As long as you have a reasonable fear of imminent death or serious bodily harm, you can use deadly force.

But, and self-defense law has more buts in it than all the port-a-potties at a rock concert, there are exceptions. Biggest? You can’t claim self-defense, if you violated your duty to retreat.

The duty to retreat is not the battle strategy of the Cowardly Lion. Rather, it’s a legal principle that says, before you can claim self-defense, you must be able to show that you tried to avoid the confrontation by retreating. If, for example, you’re in a bar and a drunk tries to pick a fight with you. If you can walk away from the fight without endangering yourself, you must do so. You can’t just stay there, let the fight happen, then claim self-defense. You must first try to retreat from the situation. And you’re not absolved of the duty to retreat because someone called you chicken, so Marty McFly is SOL.

But, and like I said navigating self-defense is like playing a round of but-but golf, there is an exception to the duty to retreat. The Castle doctrine.

The castle doctrine is not: Castle will first come up with some screwball conspiracy theory solution to the murder before he and Beckett figure out who the real murderer is. Rather it says that when you are in your own home, and a man’s home is his castle, there is no duty to retreat. You can use deadly force against trespassers at your home without retreating.

Some jurisdictions even extend the castle doctrine to other places such as one’s car or place of business. So if you’re in your car or place of business, you don’t have to retreat before using self-defense. Other jurisdictions have taken the castle doctrine even farther by passing a stand-your-ground law. Stand-your-ground laws extend the castle doctrine to anywhere. Under stand-your-ground laws, if you are in a place where you have a legal right to be, there is no duty to retreat and you may use deadly force if you believe you face a real and imminent threat of serious bodily harm or death, no matter where you are.

But – remember self-defense law has more buts than the ashtrays outside a Nicotine Anonymous meeting – not even the castle doctrine gives you full and free range to open fire on all trespassers. The castle doctrine – and even stand-your-ground laws – requires that in order to use deadly force, the actor have a reasonable belief that the trespasser intends to inflict serious bodily harm or death on someone, and the actor must not have provoked the intrusion.

So if you’re the neighborhood curmudgeon and you have a “No Solicitors” sign prominently posted on your house, you still can’t use the Castle doctrine to justify shooting the local Girl Scouts. No matter how much you hate Thin Mints.

Now having set the parameters, could the security guards in Kane County assert the castle doctrine against Batgirl and Poison Ivy to justify the use lethal force against the trespassers? The short answer is no.

And as much as I’d like to leave it at the short answer, you know I can’t. Gotham City is in New Jersey. New Jersey does have a castle doctrine on its books – it’s here. But New Jersey’s castle doctrine only applies to one’s house. New Jersey did not extend its castle doctrine to a car or an occupied place of business. The security guards at the medical complex could not rely on the castle doctrine and deadly force did not flow automatically from the fact that Batgirl and Poison Ivy were trespassing on private property.

So the security guards were wrong. But – and I think we’re up to at least But-terfield 10 by now – they were still right. If the security guards honestly believed they faced an immediate threat of serious bodily harm or death, they could use deadly force, just so long as they didn’t violate their duty to retreat.

Did the security guards violate a duty to retreat? No. They were, after all, security guards. They were hired to repel forcible trespasses. The guards wouldn’t be able to do their jobs very well, if every time there was a trespasser, they had to back away to comply with a duty to retreat.

The duty to retreat is suspended for armed security guards. But they still don’t have the right to use deadly force against any trespasser; like some really ambitious Girl Scouts who were trying sell cookies at a remote medical research complex. But they could use deadly force against trespassers whom they feared were about to inflict serious physical harm or death.

These security guards didn’t have Girl Scouts. They had Batgirl, a masked vigilante whose usual modus operandi is to resort to physical force. Hell, during the fight scene Batgirl’s internal dialogue caption even said she was “pretty good at force.” They also had Poison Ivy, a known super villain who was even quicker to use serious physical force, and sometimes even deadly force. I don’t think the security guards would have had much of a problem proving they had a reasonable fear of serious physical harm or death.

So, the guards were right, they did have the legal right to use deadly force against Batgirl and Poison. But for the wrong reason. They couldn’t claim the castle doctrine, but they could invoke standard self-defense.

Gee, armed security guards in Gotham City actually did something right. It’s almost enough to make you start believing that armed, uniformed authority figures in Gotham City are actually good at their jobs.

But only almost. Let’s not get carried away or anything

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #329: THE LONE RANGER RAINS IN THE LYNCH MOB

tumblr_mvv6jfObOq1ssmbizo1_500The answer to the legal question posed in The Lone Ranger v 2 # 22 is: I don’t know, either.

There, that was short and sweet. I answered the question, so we can all move on to other things. Me, I’ve got Baseball playoff games to watch. And you…

And you, you’re not satisfied.

Okay, guess it’s time to make a short story long.

The Lone Ranger v 2 # 22 “Rainmaker.” It started in 1870 in a “rural town at the edge of what would become the Oklahoma Territory.” Actually, it started quite a bit earlier. It started whenever the drought started; however many weeks, months, or years that was. The drought which turned the earth dry, killing the crops and the cattle of this rural town alike.

It started because the good people of this rural town were so desperate for the saving rain that they paid an elderly Indian woman who claimed to be a rainmaker a small fortune in gold. She promised that, if paid, she would do a rain dance and it would rain. They paid. She danced.

It didn’t rain.

Not that day. Not the next. Or the day after.

Eight days later the town didn’t love her. It still hadn’t rained and the people were up in arms, although for a western town in 1870, surprisingly few of them were armed. The townspeople believed they had been cheated, swindled, their money stolen by a fraud. They tracked the old rainmaker down, brought her back to town, and were getting set to lynch her.

That’s when the Lone Ranger and Tonto stepped in. Or rode in. When the third most important character in your series is, “a fiery horse with the speed of light,” named Silver, you don’t step into a story. You ride.

The Ranger stopped the lynching and then he, Tonto, and the local sheriff took the old woman off to the local jail. Because where else is the local sheriff going to take her? Sing Sing was out of his local jurisdiction. Alcatraz was still a military prison in 1870. And Shawshank was, well take your pick; not built yet, in Maine, or entirely fictitious.

The Lone Ranger and the Sheriff talked about the situation and basically spend pages six, through eight telling each other and the readers the same stuff that they and we had already learned in pages one through five. The town paid the woman money for a dance guaranteed to bring rain and it didn’t rain. (See, I can do it, too.) The Ranger asked, “Sheriff has a law been broken?” and the Sheriff answered, “Well … hell I don’t know.”

And, as I said back when I was trying to make this column like a stack of two pancakes – short and sweet – neither do I.

Why don’t I know? Because I have no idea what laws existed in some rural town at the edge of what would become the Oklahoma Territory back in 1870, that’s why. Can I conjecture? Sure, I can take the fairly standard elements of criminal fraud as they exist today, pretend that whatever law existed back in 1870 was similar, and go from there. It won’t do any good, but I can do it.

Still, as I’ve already blown my hope of making this my shortest column ever, I might as well. Just be warned, it won’t do any good.

Criminal fraud consists of five basic elements. They are that a person 1) made a false statement of a material fact, 2) knowing that the statement was untrue, 3) with the intent to deceive the victim, 4) into relying on the false statement, 5) resulting in some injury – physical or financial – to the victim. Some of the elements are easy to deal with. So let’s deal with them easily.

The townspeople did rely on the rainmaker’s promises of rain and they paid her money to dance and produce rain. So far it hadn’t rained. Those would satisfy elements four and five, reliance and injury. If elements one, two, and three were also met, we’d have a criminal fraud. So were elements one, two, and three met? I don’t know. That’s why my applying the elements of the present day crime of criminal fraud to our story won’t help. I have no idea about those first three elements.

Oh, we know the old woman made a statement of a material fact. She said if she were paid she would dance and it would rain. But in order for it to be criminal fraud, it would have to be a false statement. And the rainmaker would have to know it was a false statement.

Let’s suppose, for example, your buddy Bernie  made off with some other peoples’ money – a boatload of money; hell, an Exxon Valdez load of money — in a fraudulent Ponzi scheme. Bernie was promising huge monetary returns, if people gave him their money to invest for them then pocketing much of it. Now I know we’re not supposed to suppose, but let’s further suppose that you honestly believed what Bernie was telling people was true and you convinced new investors to join Bernie’s wealth management fund by repeating Bernie’s material misrepresentations. In that case, would you be guilty of fraud making false statements that bilked people of their money?


You may have made false statements, but you did not commit criminal fraud, because you believed the statements were true. To be guilty of criminal fraud, a person must make the false statements while knowing that they’re false. If the person mistakenly believes the statements are true, even though they’re false, then the person has not committed criminal fraud. Oh the person may have committed some tortuous negligence, but not criminal fraud.

Which brings us back to our story. Did the old woman knowingly make a false statement? Did she know her dance would not produce rain and was hoping she could get away before the town realized that soon it wasn’t going to rain? If so, then she made a false statement. If, however, she honestly believed her dance would produce rain, then she did not knowingly make a false statement and she didn’t commit criminal fraud.

So which kind of statement did she make? I don’t know. The story didn’t give us this information.

I do know this, later that night – eight and one-half days after the rainmaker danced her dance – it rained. The townspeople were satisfied and let the old woman leave with her life. And her money. So was she a fraud who just happened to luck out when it actually rained? Or was she a mystic of some kind, a rain king who hoofed like Ann Reinking and called the water out of the sky?

Like I said, I don’t know.

Which, I suppose, is a good thing. People call me a know-it-all. A lot. But now I have formal and printed proof that I ain’t.

The Law Is A Ass


SheHulkIt was like one of those puzzle pictures we used to read in Highlights Magazine in the dentist’s office waiting room. The “What’s wrong with this picture?” one. But with one major difference. In this case, the picture is She-Hulk v 3 # 8, and the answer to what’s wrong with it is, not much of anything. Still, I want to show I can waste as much of our time writing about how a comic book story got the law right as I can writing about how it got the law wrong. So here goes.

She-Hulk v 3 # 8 started in a Los Angeles hospital where a dying nonagenarian made a death bed confession regarding “something terrible he needed to get off his chest.” No, not his “I heart Snooki” tattoo. Unfortunately, the story immediately cut to three weeks later, so we don’t know to what the dying man confessed.

After said three weeks transition, Steve Rogers, the once and future Captain America – Seriously, does anyone really think Falcon will still be Captain America when the third Cap movie comes out in two years? – visited the law office of Jennifer (She-Hulk) Walters. Cap told Jennifer why he came, but not us readers. Again with the keeping secrets from the readers? All we know is that Cap’s being sued in Los Angeles Superior Court for wrongful death, because of something that happened in Los Angeles in 1940. The rest will be parceled out slowly over the course of this multi-part storyline. It’s enough to make you wish that Lost never got on the air.

Jennifer suggested filing a motion to dismiss the suit on the grounds that Cap died a few years ago and a person can’t be sued post-mortem. Cap nixed the idea. He didn’t want to win the case on a technicality. Which is just as well, as Cap didn’t really die. He had been shot with a gun that caused him to phase in and out of time and space and everyone thought he was dead; but he wasn’t. Filing a motion to dismiss that argued Cap had died when he hadn’t would have been a fraud on the court. Matt Murdock may play so fast and loose with legal ethics that he’d argue a motion based on a fact he knew wasn’t true; I’m not so sure about Jen.

Jen also considered the statute of limitations. Both state and federal jurisdictions have statutes which command that causes of action must begin within a certain number of years after the event which caused the cause of action. If the lawsuit isn’t filed within the statutory limit, it is procedurally barred. Hence the name statute of limitations.

Statutes of limitations exist to protect defendants from the possibility that the evidence necessary to defend themselves has been lost, destroyed, or forgotten in the intervening years. In California, the statute of limitations for wrongful death is set forth in California Code of Civil Procedure § 331.5 and it’s two years. Which means the time to file the wrongful death suit against Cap expired in 1942.

But the suit against Cap asked for equitable tolling of the statute, because the family didn’t learn it even had a wrongful death action until that deathbed confession three weeks earlier. Judges can grant a motion to toll the running of the statute of limitations, if the plaintiffs did not know about the claim until after the statute of limitations had expired. Some judges won’t, because they see it as a way of getting a case off their docket. But they can. Some judges do, because they see it as fair and equitable. But they don’t have to. The judge in our case probably doesn’t even have to worry about it.

Remember Cap already said he didn’t want to win on a technicality. He wanted to try the case and win it on its merits, so that his name would not tarnished in any way. A statute of limitations dismissal would be the type of technicality that Cap would veto.

And Jen would have to accede to Cap’s wishes on this, even though it might not be in his best interests. If a client wants his or her case handled in a certain way, the lawyer representing the client must accede to the client’s wishes, as long as the client’s wishes aren’t illegal or unethical. If a client wanted to put on perjured testimony, a lawyer wouldn’t have to do that; in fact, couldn’t do that. It’s illegal and unethical. But there’s nothing illegal or unethical – merely unwise – about not wanting to file a motion to dismiss and a lawyer couldn’t file one against the client’s wishes.

Someone asked me how Cap can be sued in Los Angeles when he’s a citizen of New York City. That’s easy. Whatever happened in Los Angeles back in 1940, Cap was there when it happened. That gave California and her courts personal jurisdiction over Cap for the case. If you visit L.A. and cause a traffic accident, the other people in the accident can sue you in L.A. That’s where the accident happened and where you were, when you caused it.

The next thing that happened was that Jen had to get some California lawyer to sponsor her appearance in a California court pro hac vice. This is a procedure by which a lawyer who is not licensed to practice in a state gets permission to be admitted to that state’s bar just for the one case; pro hac vice being a Latin term meaning “for this occasion.” It’s done by having a lawyer who is licensed in the state file a pro hac vice motion on behalf of the out-of-state lawyer.

But why, you may wonder, did Jen have to proceed pro hac vice? After all, waaay back in The Savage She-Hulk# 1, Jen lived, and practiced law, in Los Angeles. She was already a member of the California bar. Emphasis on the “was.”

California, like Ohio, has a registration requirement. In order to continue practicing law in California, every three years a lawyer must take enough California continuing legal education classes to meet California’s CLE requirements. Oh, and pay an annual registration fee. Several years ago Jen moved to New York and started practicing there. In addition, for some period of time, Jen was disbarred and worked as a bounty hunter. Although Jen got her license back, between years of practicing in New York and months of being a disbarred bounty hunter, Jen let her California license become inactive.

Yes, she could get her California license reinstated, but only after taking enough CLE classes to satisfy California and paying her registration fee – don’t forget her registration fee, money-strapped California won’t. But that takes time.

The wrongful death suit against Cap was filed no more than three weeks ago and probably later. Jen agreed to represent Cap some about days before it was set to go to trial. Jen didn’t have time to get her California law license reinstated. Hence the pro hac vice request.

Jen called Matt Murdock – who had just resumed practicing law in California after he was disbarred in New York, himself – to help her file a pro hac vice motion. He turned her down. So Jen ended up using Matt Rocks, one of former X-Factor leader Jamie Madrox’s duplicates who had become a successful entertainment lawyer in L.A.

For two days, Jen prepared herself for the trial, until she was confident that she’d be ready for anything the opposing side could throw at her. Which led to the big surprise ending. And to this


As in, I’m about to give away the surprise ending of the story and you have been warned not to proceed if you don’t want to know it.

When Jen entered the courtroom, she discovered that opposing counsel was Matt Murdock.

Although, come to think of it, that wasn’t really all that much of a spoiler. If you didn’t see this ending coming the second Matt Murdock turned Jennifer down, you weren’t paying attention when you took Twist Endings 101.

The surprise ending did puzzle me, tough. Why didn’t Matt simply tell Jen he couldn’t help her file a pro hac vice because he was opposing counsel? There is absolutely no reason for him to have kept this information secret other than to be a dick. Still, considering some of the crap Matt has pulled in the past few years, being a dick may have been reason enough for him.

On the other hand, Jen should have known Matt was opposing counsel, anyway. As the attorney of record, Matt would have signed the official court filings in the case; the complaint, motions, requests for discovery, or what have you. Even if some other lawyer prepared the case, filed the complaint and all the other motions, and Matt only just took over the case; Matt would have filed a notice of appearance in the case to alert the court that he was now the attorney of record. Jen should have seen that notice while preparing for the case and known about Matt. If she didn’t, she should really withdraw from the trial, because she’s a poor excuse for a lawyer.

Now I said the story got the law right. Actually, it mostly got the law right. But the story would have us believe a seventy-four-year old wrongful death suit was going to trial only three weeks after the plaintiffs first learned their cause of action existed. I’m sorry, but no.

Neither Jen – three days – nor Matt – three weeks – would have had sufficient time to prepare their cases; what with all that pretrial discovery and deposing witnesses and endless motion practice. Both sides should have moved for a continuance to give themselves adequate time to prepare for a trial that is so important. Even squeaky-clean Cap could have no complaints to Jen’s moving for a continuance so she could have more than three days to prepare for a trial. Winning a trial because your lawyer is prepared is not winning on a technicality. And going to trial with a lawyer that hasn’t had time to prepare is more suicidal then playing Russian Roulette with a fully-loaded revolver.

Also, three weeks? I admit, I’ve never practiced law in California, so I can’t tell you how quickly civil cases move forward out there. But three weeks?

I can tell you that in Cleveland it takes several months – usually several years – for a civil case to come to trial. And Los Angeles County is 7.67 times more populated than the county where Cleveland sits, so probably has lots more civil cases clogging up its dockets. Those cases would be ahead of Jen’s trial and would have been tried first. There is no way a complicated wrongful death suit would ever come to trial in only three weeks.

Trust me, the constitutional right to a speedy trial only applies to criminal trials, not civil trials. Civil trials are about as speedy as Congress moving on immigration reform.

Well, what do you know? This is the longest column I’ve written for ComicMix. Turns out I was wrong before. Seems I can waste even more of our time writing about how a comic book story got the law right than I can writing about how it got the law wrong.

The Law Is A Ass


Americas-Got-Powers-taps-into-TV-zeitgeist-4919II99-x-largeLet’s just say… I was disappointed.

I have a name for my disappointment and it’s America’s Got Powers #1, the first issue – hey, with the screwy numbering system American Comics use nowadays, one can’t be sure # 1 is actually the first issue – of the new mini-series from Image. Disappointing because it was such a cynical and negative portrayal of America. So let’s proceed that I might give voice to my disappointment.

In the not too distant future, to borrow a line from the Mystery Science Theater 3000 theme – because “borrow” sounds so much nicer than steal – something happened. Which, makes America’s Got Powers better than most mainstream comic books, where super heroes can take four pages just to get their mail – and you only think I’m making that up – so as to stretch out some skimpy story out for the six issues suitable for framing or collecting into a trade paperback.

What happened? A big blue crystal fell from outer space and landed in the middle of Golden Gate Park in San Francisco. Then, in a real break from mainstream comic books, something else happened. Yes two things happened in the same issue. Every pregnant woman within a five mile radius of the crystal went into labor. (Good thing that crystal didn’t land in Arizona where the new abortion law says pregnancy starts on the first day of a woman’s menstrual cycle. Under that definition, girls who’d never had sex would still be pregnant and might have given spontaneous, virgin births. The theological implications are staggering.)

Now you might think that’s enough for the first issue of a comic book. “But wait!” I say in my best Ron Popeil imitation, “There’s more!” Every one of those babies was born with a super power. And that’s where the fun began.

After all those super babies were born, the country endured the Power Riots, whatever those were, which “destabilized the entire country.” In order to calm the public, the US government rounded up the children who got super powers from a crystal, or “Stoners” as they were called, then put them in camps and a training school. The government conducted research on the interred Stoners and trained them how to use their powers, all, ostensibly, in an effort to “re-integrate them” into society. The government funded this facility with the TV series America’s Got Powers.

What’s America’s Got Powers? It was the country’s newest mega-hit reality TV show. The show’s premise was simple. Imagine a reality show which took the best parts of American Idol and American Gladiators, tossed them out, and presented a mash-up of the rest. In other words, in America’s Got Powers, Stoners fought both mechanical adversaries and each other in televised combat all in an effort to be the last one standing. America’s Got Powers was kind of like The Hunger Games but with less food. The winners got to join the world’s only super-hero team,“Power Generation,” while the losers who survived went “back to the camps.”

As the story opened, America’s Got Powers was about to start its seventeenth season. Each of the shows’s first sixteen seasons had become increasingly brutal. With its seventeenth season, the producers decided to reduce all the safety protocols in the combat arena to the minimum settings and to handicap the Stoners with secret treatments or devices that slowed them down. The result was the Stoners couldn’t fight their robotic opponents effectively and were pounded on until they looked like Wile E. Coyote on a particularly bad day.

Now, you might have noticed that I used the word “ostensibly” when I said the purpose of the government’s program was to re-integrate the Stoners into normal society. We’re dealing with an agency of the United States government in a comic book. In today’s comic books, any government agency that doesn’t have a secret agenda is underachieving. America’s Got Powers’ evil secret agenda was confirmed by the producers of the show; an Army general, a United States Senator, and a corporate CEO. We’re not quite sure what the secret agenda was, but we’re pretty sure it was up to no good. After all, what fun is a secret government agenda that’s up to good?

(One point about this trio of producers: Creators, when you set up a government agency with an evil secret agenda, you risk both having your political motivations questioned and having subtlety points deducted from your score by drawing the politician to be a dead ringer for Sarah Palin.)

“But, Bob,” you ask in one of those marvelous imaginary conversations between reader and columnist which I pretend can happen as a way of making a transition, “why fret about the subtlety of political caricatures when this story postulated that the US government was rounding up differently-abled minors, putting them into camps and training them to become involuntary soldiers or some such? We have the Emancipation Proclamation and the 14th Amendment. And child endangerment laws. And child labor laws. Those sorts of things can’t happen, can they?”

Of course not. Those things can’t happen. That’s why colleges and high schools all over this country televise football games. Games in which young men get injured, seriously injured, catastrophically injured, and even fatally injured. And that’s just college and high school. Imagine if a government with a secret agenda got involved. Because that sort of thing can’t happen.

Of course not. Those things can’t happen. That’s why this country never had a Selective Service Commission or a draft and it never conscripted minors who couldn’t even vote yet into the armed forces to fight wars in North America, Europe, Africa, western Asia, southeast Asia., central Asia, and anywhere else where those conscripted minors ended up in the path of enemy bullets and fragmentation grenades. Because that sort of thing can’t happen.

Of course not. Those things can’t happen. That’s why the PATRIOT Act doesn’t exist and has never been used to abolish the Writ of habeas corpus or to justify rounding up people and confining them in Guantanamo Bay indefinitely without trial. Because that sort of thing… Oh you get the idea.

And before you argue that Gitmo is used to house – or warehouse – foreign nationals and such confinement can’t happen to United States citizens, I remind you of the Japanese Internment Camps of World War II. You know, the program where thousands of people who happened to have Japanese ancestry but who were born in this country and were unquestionably United States citizens, were removed from their homes, deprived of their property, and placed in indefinite confinement in internment camps without ever having been charged with a crime. Without, in fact, ever even having committed a crime.

And I guess that’s why I was so disappointed with America’s Got Powers and its cynical and negative portrayal of America. Given what we know about what truly happens in this country, I don’t think America’s Got Powers was anywhere near cynical or negative enough.

AUTHOR’S NOTE: From time to time I have been running columns I wrote years ago which, for one reason or another, have not been widely published. This is another one of them. This is, in fact, the last such column I have in my files. So I guess I’d better get busy writing the next new column, because I don’t have any more old ones with which to buy myself some time.

The Law Is A Ass


8039971943_4211f4754e_zSeriously, where were these judges when I was practicing law?

In the real world, evidence can be suppressed when it is seized illegally. But in the real world, judges hate suppressing evidence and do it infrequently. No make that very infrequently. In comic books, TV, and the movies; judges seem willing to suppress evidence if it’s a day that ends in Y.

Same is true with the mental health docket. In the real world, juries don’t like the insanity defense and virtually never find criminal defendants not guilty by reason of insanity. And even that may be an overstatement.

Before the trial of John Hinkley, the man who was obsessed with Jodie Foster and tried to assassinate President Reagan, the insanity defense was used in approximately two percent of criminal trials. And it failed 75 percent of the time. After John Hinkley was found not guilty by reason of insanity, 83 percent of those Americans polled thought justice had not been done. As a result of the Hinkley trial, the United States Congress and two-thirds of the states rewrote their insanity defense statutes to make it more difficult to assert a defense used only two percent of the time and rejected 75 percent of the time. Another eight states rewrote their laws and changed Not Guilty by Reason of Insanity to guilty but insane. Oh, and Idaho, Montana, and Utah abolished the insanity defense completely. That’s how unpopular the insanity defense is with both juries and with judges.

Even though most insanity trials are tried to a judge instead of to a jury, judges don’t like finding defendant’s NGRI any better than do juries. For one thing, that 83 percent of the people that were outraged by the Hinkley verdict; they weren’t just people, they were voters. Voters who were stand to be equally outraged anytime a defendant is found NGRI. Judges don’t like upsetting 83 percent of the people the judges want voting for them by finding defendants insane willy nilly. Or Chilly Willy. Or even Willy Nelson. That 75 percent figure I quoted earlier; that was for all trials – jury trials and bench trials.

For the record, judges don’t much appreciate the legal subsets of criminal insanity, either. Things such as competence to stand trial. Makes judges look soft on crime. Which brings us, at last, to the reason I called you all in today. It was the story “Herded Limits” which can be found in Legends of the Dark Knight 100 Page Super Spectacular # 4.

(By the way, if, like me, you’re wondering about that title – no, not Legends of the Dark Knight 100 Page Super Spectacular; that title is a little cumbersome but perfectly understandable – “Herded Limits” is an anagram for “Riddle me this.” I know, I Googled it. Not important to our discussion, but nice to know.)

The Riddler was facing prosecution for attempting to steal some gold. I said attempted because he didn’t succeed. Why? Because Riddler sent the Batman a riddle, Batman solved the riddle, and Batman captured the Riddler. Seriously, do you even have to ask why a Riddler plan failed? The why of his failures are pretty much a given.

But before Riddler faced prosecution he had to go through a hearing to determine whether he was competent to stand trial. Now I give this story credit, it stated that Riddler had been diagnosed with Obsessive-Compulsive Disorder or OCD, which it then correctly defined as, “repetitive behaviors … that the person feels driven to perform in response to an obsession or according to rules that must be applied rigidly.” That’s a quote directly out of the fourth edition of the Diagnostic and Statistical Manuel of Mental Disorders – or DSM-IV, as it’s called for short by the medical field. (Though for future reference, this reference is up to the fifth edition, or DSM-V, now.) The story noted that Riddler’s ODC didn’t manifest itself in the usual ways such as repeated hand washing or counting or all the other things you used to see Adrian Monk do. Riddler’s OCD manifested in his compulsion to inform the Batman of his impending crimes by giving Batman a series of puzzles which contained clues to his planned activities. Because Riddler had OCD, the court had to rule whether he was mentally competent to stand trial.

I give the story credit again, not only did it correctly define OCD, it correctly identified the standards a court must find are met in order to find a defendant incompetent to stand trial. The judge must rule that the defendant’s mental illness affects his or her mental processes so as to either render him or her incapable of understanding the nature of the charges brought against him or her, or renders him or her incapable of assisting in his or her defense. In “Herded Limits,” the judge ruled that the Riddler met those standards and was incompetent to stand trial. He remanded Riddler to Arkham Asylum until such time as treatment could render Riddler competent to stand trial. So the story got the law completely right. But the judge in the story got the law completely wrong.

The judge seemed to be operating under the misapprehension that if someone who’s been apprehended is mentally ill, he’s automatically incompetent to stand trial. But that ain’t necessarily so. In fact, it begs the question you’re begging me to answer: When is someone incompetent?

Say the Riddler suffered from delusions and killed someone he thought was the devil, he might not understand the nature of the murder charges brought against him, because it’s not against the law to kill the Devil. Of, if the Riddler’s delusions made him think his lawyer was the Devil, the Riddler might be reluctant to talk to his lawyer. In either of those admittedly simplified cases, the Riddler would be incompetent to stand trial.

But neither is true of the Riddler. The Riddler has a compulsion to inform Batman of his impending crimes. How does this affliction render him incapable of understanding the nature of the charges against him? The Riddler knew he was going to commit crimes. He even challenged Batman with the task of stopping him from committing the crimes. This compulsion to give advance warning indicates that Riddler would know the nature of the charges being brought against him quite well. He was charged with doing the thing he said he was going to do.

In the same way, the fact that Riddler is compelled to inform Batman when he’s about to commit a crime doesn’t mean he can’t assist in his own defense. To be competent, a defendant must be able to communicate with his attorney, understand and process information, and be able to make decisions regarding his case. Riddler consistently shows, through his riddles, that he can communicate. If anything, he communicates too much. His riddles shows that he can understand and process information so well that he can take information and process it into elaborate puzzles. This combined with his genius-level intelligence indicate that he could make decisions regarding his case.

Nothing, absolutely nothing in Riddler’s rather particularized OCD indicates that he is incompetent to stand trial. I simply cannot understand how 27 different psychiatrists, according to the story, could evaluate Riddler and find he was incompetent to stand trial. I can’t understand how the judges who presided over Riddler’s cases, however many that was, could find he was incompetent to stand trial, either. The judges were more likely to find the 27 psychiatrists incompetent for their erroneous opinions about the Riddler.

But judge after judge has found Riddler incompetent to stand trial and sentenced him to Arkham to be treated until he can be restored to competence. (Really? Arkham? Riddler hasn’t been declared criminally insane only incompetent to stand trial. Judges don’t send a man whose crimes are “rarely violent” and who has been ruled incompetent to the maximum security asylum for the criminally insane. Cleveland, which is a much smaller city than Gotham City, has several institutions for treating defendants in its mental health docket. We don’t normally send people ruled incompetent to the super-max asylum to rub shoulders with all the violent offenders who have been found to be criminally insane. We send them to the lesser institutions. But, I digress.)

Gotham City has seen judge after judge find the Riddler incompetent to stand trial under facts where no judge in the real world would likely find a defendant incompetent. So I repeat the question I posed at the beginning of this column: Where were these judges when I was practicing law? If I had been able to appear before them, I would never have lost a case.

The Law Is A Ass


Batman_Vol_2-23.2_Cover-1_TeaserWell, there’s no putting it off any longer. I might as well get the unpleasant business out of the way right up front.


 I want to discuss the legal aspects of Detective Comics: Futures End # 1 and there is literally no way I can proceed without discussing its ending. So if you haven’t read Detective Comics: Futures End # 1 and you don’t want to know how it ends, stop reading now. Come back after you have read it. If, on the other hand, you have read the comic in question or you simply don’t care that I’m about to give away the ending, then continue reading.

This has been a test of the Emergency SPOILER WARNING! System. We now return you to your regularly scheduled column already in progress.

The story opened five years from now – remember, the DC books coming out in September this year all tie into the weekly Future’s End series and take place five years in the future – with a scene of The Batman flying through Gotham City. Now it’s not unusual that a Detective Comics story should open with the Batman. Many of them do. What is unusual is that Batman was flying toward a large skyscraper with a huge question mark insignia on the top floor.

Clearly, it was the headquarters of The Riddler. But why would a master criminal have such an obvious and ostentatious headquarters?

It seems that sometime in the five years between now and five years from now when some futures are going to end, Batman helped broker a full pardon for the Riddler. How? I don’t know. Why? I still don’t know. (Seriously, did you think that between writing those two sentences, I went back to re-read the story, and saw something I missed the first time?) The story didn’t reveal either how or why the Riddler was pardoned. It’s one of those great mysteries we may find the answer to in the next five years. Like which came first, the chicken or the egg? Or who’s on first?

Batman needed Riddler’s help. Seven days earlier, Julian (the Calendar Man) Day broke free of his cell on Arkham Island, the new asylum of the criminally insane that was – Will be? – built in Gotham Harbor. Julian was holding several of the Arkham staff hostage.

Julian had one demand and if it wasn’t met, he was going to duplicate the city-wide blackout that the Riddler had cast over Gotham City back in the “Batman: Zero Year” story arc. Excuse me but what? When they built this new asylum for the criminally insane, did they build it over Gotham City’s main fuse box?

Because Calendar Man had hostages, Gotham City couldn’t bomb Arkham Island. And the police couldn’t storm the island because they couldn’t get past the security devices that Riddler built into it. (Yes, sometime in those event-filled five years, the Riddler, a former inmate in Arkham Asylum, designed the new version of Arkham Asylum and all of its security measures. I hope it was good therapy for Riddler, because it sure don’t make much sense otherwise.) So Batman came to Riddler so that Riddler could help Batman get past Arkham Island’s security.

While Batman and Riddler had fun stormin’ da castle, Batman told Riddler what Calendar Man’s one demand was. Several years ago, before he became Calendar Man and was still just Julian Day, Julian’s wife died. Julian started drinking, lost his job, and became muscle for the Gotham crime boss The Squid. He also physically abused his son when he got drunk. So in Detective Comics Annual v. 2 # 3, the Batman defeated all the bad guys Julian was working with, foiled their plans, and placed Julian’s son in a shelter for battered women and children. Now Julian demanded that the man who destroyed his family be brought to him or he would black out Gotham. Riddler expressed some regret at what Batman is doing. After all, Calendar Man and his thugs were going to kill Batman and Batman was the only worthy adversary Riddler ever encountered.

So, cutting to the chase – of whatever it is I’m cutting to, as this story didn’t actually have a chase scene – Batman and Riddler got past the security devices. Then Batman had an obligatory fight scene with Calendar Man’s henchmen, because there hadn’t been a fight scene yet and it was obligatory.

When Calendar Man appeared, Batman explained that Riddler helped Batman get past the security devices, so that they could deliver to Calendar Man the man responsible for destroying his family. Then Calendar Man ordered his men to take Riddler away.

Riddler asked why they were taking him, it was Batman who destroyed his family. Calendar Man said he was a rotten single parent and deserved to have his son taken away. His wife held his family together and it fell apart after her death. His wife’s death is what destroyed his family and she died in Riddler’s Zero Year blackout. Riddler was the man who destroyed his family.

As Calendar Man and his goons dragged the Riddler off to Crom knows what, Batman smiled a smug and oh-so–pleased-with-himself smile and said, “Riddle me this. How do you trap the untrappable? You get them to trap themselves.”

The end of the story and the beginning of the meat of this column, so I guess I should have included a Vegetarian Warning, too. I don’t know what Calendar Man and his goons plan to do with Riddler. Riddler thought they were going to kill and they probably are. But kill Riddler, cut him, or force him to watch Gigli; any way you slice it – or the Riddler – it’s going to be bad for the Riddler. And the Batman delivered Riddler to these men knowing something what was going to happen.

Which makes the Batman a murderer, or assaulter, or a torturer depending on what Calendar Man and his goons do to the Riddler. Let’s go with murder, because I don’t want to keep typing all the possibilities.

How so? Well the New Jersey Code of Criminal Justice, which defines the crimes for that state, has a statute – N.J.S.A. 2C:2-6 – which defines the crime of Complicity. In New Jersey a person is an accomplice to a crime, and is as guilty as the principal offender, when he or she has the intention of facilitating the offense and aids the principal offender commit the offense. You may know this crime better as name aiding and abetting, which is what it’s called in some other states. But a crime by any other name is still illegal.

If the Batman helped Calendar Man murder the Riddler and if the Batman intended to help Calendar commit that crime, then he’s as guilty of the murder as Calendar Man is. The getaway driver who takes bank robbers away from a bank robbery – or to a bank robbery – is as guilty as the actual people who actually rob the bank, because he helped them commit it. In the same way, the person who brings the victim to some murderers and who knows that they will murder the victim once they get him is as guilty of the murder as the murderers who actually commit the murder. Why? Because he helped them commit the murder by bringing the victim to them, that’s why.

Now I know that this story takes place some five years in the future, but if you think in those intervening five years someone repealed the complicity statute, you’re delusional. They may have been dumb enough to let an ex-inmate of an asylum for the criminally insane design the new asylum for the criminally insane, They may even have been dumb enough to build the new asylum for the criminal insane over the main fuse box of a major city. But repeal the complicity law at a time when the prevailing attitude on crime is you’ve got to be tougher than utility beef? No one’s that dumb.

The Law Is A Ass #325: Did Daredevil Have To Be Disbarred?

lawass-300x150Well, the story didn’t get the law wrong. But I’m not sure it got the law right, either.

The story in question is Daredevil v.3 # 36. The law in question is… Well, that would be telling. Which is exactly what I’ll be doing for the next thousand words or so, telling you about that law.

Daredevil v. 3 # 36 was the culmination of a multi-part story. Multi-part story short: Robert Oglivy has been framed for murder. Robert’s father wanted Matt Murdock, who is secretly Daredevil, to represent his son. Matt was reluctant, because Ogilvy was the head of the latest iteration the Sons of the Serpent – a racist hate group which secretly controlled the New York City justice system. Ogilvy blackmailed Matt by threatening to out Matt as Daredevil, unless Matt agreed to help Robert.

In order to take away Ogilvy’s leverage, Matt…