Category: The Law Is A Ass

The Law Is A Ass


Georgia_Dakei_(Earth-616)_from_X-Factor_Vol_17_001See, now this is why people need lawyers.

I’ve written this column long enough and covered so many topics that the “this” to which I alluded in my first paragraph could be just about anything. But in this case, the “this” happens to be All New X-Factor #7. And the “people” happen to be the members of the all-new X-Factor – Polaris, Gambit, Quicksilver, Cypher, Warlock, and Danger. So let us proceed there with all due haste.

The story opens with a young girl named Georgia Dakei. Georgia is the daughter of Scott Dakei who is, himself, a piece of work. Not just because he’s a fictional character so is, by definition and like all fictional characters, a piece of work. Scott is an anti-mutant bigot and an ultra-conservative multi-media mogul who owns a half dozen major newspapers and a major news network. So Scott’s Rupert Murdoch. In addition to being a media mogul, Scott writes best-selling spy thrillers; which also makes him part Bill O’Reilly,  part Glenn Beck, part William F. Buckley, and part every other conservative pundit who has turned to writing action thrillers. Finally, Scott is a paranoid who lives in constant fear of what he believes is an over-reaching government that’s poised to attack him at any moment. Because of his extreme political views, not because it doesn’t like his books. So Scott lives in a heavily-fortified underground compound in New Mexico called The Bunker. Seriously, the man’s got a bunker mentality and lives in a compound called The Bunker? That’s a little more on the nose than Pinocchio playing Liar’s Poker.

Georgia lives in The Bunker with Scott, where she is home schooled and completely shut off from the rest of the world. Like most teenagers, Georgia is naturally rebellious. She just happens to have a little more to rebel against; i.e. her cut-off-from-the-rest-of-the-world lifestyle which she calls boring and frustrating and depressing. The problem arose, when Georgia called her lifestyle boring and frustrating and depressing on a live video blog, against her father’s express orders and warnings. And when her father found out about it in the middle of her blog, he reacted violently. He physically yanked Georgia off screen and his bodyguard shot Georgia’s computer to turn it off.

The all-new X-Factor saw Georgia’s blog and decided to get involved. They determined that Georgia was a girl in trouble so decided to go to New Mexico and, if Georgia wanted to leave, to take her from The Bunker even against her father’s wishes. After all, as Quicksilver put it, “It’s not kidnapping if she wants out.”

And that’s where the whole X-Factor needs a lawyer thing comes in. See, a lawyer – like me – knows where to find the pertinent criminal code statutes that define kidnaping in New Mexico. Okay, you probably know where to find them, too; the Internet. But a lawyer – like me – knows how to interpret those statutes to determine whether taking the girl from her father might still be kidnaping even if the girl “wants out.”

Kidnap in New Mexico is defined in New Mexico Statute § 30-4-1 as unlawfully taking, restraining, transporting or confining of a person, by force, intimidation or deception. Now when X-Factor arrived at The Bunker, it was met with resistance in the form of multiple machine guns that Scott Dakei had ordered discharged at the team. When that didn’t kill them – come on, they’re mutants and the heroes of this comic, you expected some puny machine gun fire to take them out – Quicksilver reacted physically by knocking Scott and his bodyguard unconscious. That covered the “by force” part of the definition. So, if X-Factor actually transported Georgia from the Bunker after using force to get into it, would that be kidnaping?

Well, no.

See, I cheated a bit. I didn’t give you the full definition of kidnaping in New Mexico. It isn’t enough merely to take a girl by force. To kidnap her, you have to take her for the purpose of ransom; to use her as a hostage or shield; to enslave her; or so that you can inflict death, physical injury, or a sexual offense on her. As X-Factor didn’t have any of those motivations for taking Georgia, their taking her wouldn’t be kidnaping.

But wait. There’s more. And not just a second Ginsu knife.

The “more” is the part where the lawyer – not like me; me – tells X-Factor they need him because he knows you have to look at more than just one statute. See there’s always the possibility that, even if X-Factor wasn’t kidnaping Georgia, they’d break some other New Mexico law by taking her from her father. A lawyer would know that it was necessary to read the other statutes in New Mexico’s criminal code – such as NM Stat § 30-4-4 – and determine whether X-Factor’s actions might violate one of them – such as NM Stat § 30-4-4.

So what is NM Stat § 30-4-4 and why, as you’ve probably already guessed, would X-Factor violate it, if they took Georgia from the Bunker?

NM Stat § 30-4-4 is the Custodial Interference law. It says if a person who does not have a right of custody over a child under the age of 18, which Georgia is, maliciously takes a child from someone who has custody over the child, which Scott has, the person is guilty of Unlawful Interference with Custody; a felony of the fourth degree.

I don’t think that any court would be too hard pressed to find that if X-Factor knocked out Scott Dakei – the malicious part – and then transported his daughter away from him, the members of X-Factor would have unlawfully interfered with Mr. Dakei’s custody. Do you?

So, did X-Factor take Georgia away from her father and break New Mexico’s Custodial Interference statute? I can’t say.

No, really, I can’t say. Telling you whether X-Factor took Georgia and broke the law would be a spoiler and I’ve used up my allotment of SPOILER WARNINGS for the month.

The Law Is A Ass


prometheus_1_superRepeat after me, as I repeat for the I don’t know how manyth time: Murder is bad for children and other living things.

Murderers are also bad.

So you can just imagine how I feel about murderers who murder.

Which brings us to the conclusion of Justice League: Cry for Justice. In issue 7  of said mini-series, the super-villain Prometheus– actually the second of three super-villains to use that name in the DC Universe, don’t ask – has been cornered by the JLA. He told them that he has hidden devices in Star City and the other home cities of the other JLA members which will teleport those cities through time and space. But he promised to tell the heroes where the devices were hidden, if they let him escape.

Green Arrow refused to negotiate, so Prometheus activated the devices; the one in Star City first. The device in Star City goes off first. Unfortunately, it malfunctioned and didn’t teleport Star City. Instead it demolished much of the city and killed ninety thousand people. While the other devices were about do the same to the other heroes’ home cities. At this point, Green Arrow relented and the JLA agreed to let Prometheus go in return for him telling them where the devices are and how to deactivate them.

Now in my day, if you’ll allow me a slight digression into Cranky-Old-Man mode, the heroes wouldn’t have agreed to Prometheus’ demands. They would have apprehended him and figured out a way to keep his devices from doing any damage at all. That’s why we called them “heroes,” they were that good.

But nowadays, in a comics world which has been thoroughly corrupted by the excesses of the destruction porn which continues to generate big box office through the oeuvre of directors Michael Bay, Roland Emmerich, Zack Snyder, and anyone else who thinks computer graphics should be used in place of things such as story, plot, or characterization, the heroes can’t be heroes. They had to stand by helplessly and watch the destruction porn destruction of Star City and let Prometheus go. Okay, they did stop the other devices. But not before Star City was partially destroyed and ninety thousand people died. And not before they let Prometheus get away.

Let Prometheus get away, that is, until the final page of Justice League: Cry for Justice # 7. That’s when Green Arrow tracked Prometheus down, put an arrow through his eye – How Werthamesque – and said, “Justice.”

Green Arrow didn’t act as a hero, he acted as an executioner. He acted expediently. And, as Tony Isabella has said, “expedience isn’t heroism.”

A quick aside: I was amused by the description of this scene in Wikipedia’s entry on Prometheus, that the villain is “apparently killed by Green Arrow,” because, let’s face it, this is a DC Comics story, where death has about as much meaning as a Kim Kardashian’s wedding vows.

Cut to some days in the future when, in Green Arrow and Black Canary # 32, Green Arrow acknowledged that he crossed a line and turned himself into the police. A speedy trial followed later that same issue. I said it was speedy, didn’t I? I just didn’t realize that it would be speedier than Speedy Alka-Seltzer  and Speedy Gonzales combined. It wasn’t much of a trial, given that Green Arrow freely admitted his act and, the trial moved speedily to the verdict.

Where the jury found Green Arrow not guilty.

Did I say, “not guilty?” Well, no, I didn’t. The foreman of the jury said that. Yes, even though Green Arrow freely admitted his guilt in open court, the jury found him not guilty.

It’s called jury nullification and it happens from time to time in the criminal justice system, or, if you want to believe the trials that David E. Kelley used to show us in The Practice, it happens nearly every freaking week.

Jury nullification happens when the jury is aware that the defendant violated the law, but, for some reason, sides with the defendant and doesn’t want to convict. In this particular trial, it was probably because Green Arrow did what the jurors wished they could have done, brought ultimate justice – read vengeance – to Prometheus for the ninety thousand Star Citizens who he killed. The jury liked what Green Arrow did, even if it was against the law, so it found him not guilty.

They judge presiding over the trial wasn’t as forgiving as the jury. He decided that the verdict notwithstanding, Green Arrow deserved to be punished. So the judge ordered Green Arrow exiled from Star City.

Hey, Your Honor, what was so difficult to understand about the words “Not guilty.” It couldn’t have been the “guilty” part, you judges hear that word all the time. It must have been the word, “not.” That’s the one you’re not familiar with.

So let me explain it to you. “Not guilty” means Green Arrow wasn’t convicted. He has to be set free. It also means the Constitution of the United States forbids you from punishing him.

Look it up, it’s in the Fourteenth Amendment. You know the one that says you can’t deprive a person of “life, liberty, or property, without due process of law.” It’s the one that says, if a person is found not guilty by a jury of his peers, you can’t punish him anyway.

Oh, it’s also in the Eight Amendment, the one that forbids cruel and unusual punishment. You know like punishing a person who was found not guilty by exiling him.

And, for good measure, it’s also part of the Privileges and Immunities Clause of the United States Constitution, which the Supreme Court held gives citizens the right to freedom of movement as far back as 1823 in Paul v. Virginia, when the Court wrote that the Privileges and Immunity Clause gives citizens “ the right of free ingress into other States, and egress from them.”  So under this provision, Your Honor, you couldn’t have barred Green Arrow from traveling in your state or city without due process. Maybe, if he had been found guilty, you could have. But he wasn’t, so you can’t.

Am I getting through to you?

I mean, justice is supposed to be blind, not brain dead.

The Law Is A Ass


103241-100705Technically, we can’t call Batman a “white hat” hero. Even back in the 50s in his brightest days his hat – er cowl – was blue. But back then his actions were noble. He was and acted like a white hat hero, even if his headgear didn’t match.

Now, however, his hat is somewhere between dark gray and black. And his actions frequently trend even darker. Like in Catwoman # 29.

Now before you go further, I should issue a customary SPOILER WARNING, because I’m about to give away more than you could have wanted to know about the plot to Catwoman # 29, unless what you wanted to know was how it ended. If that’s what you want to know, then keep reading, because that’s what you’re about to get.

In this story Catwoman was attending a large black-tie publicity party being held by Taylor Pharmaceuticals. The purpose of said party was two-fold. The first was to celebrate the imminent launch of MR-40, a chemotherapy drug with minimal side effects that will revolutionize cancer treatment. The second was to celebrate the fact that WayneTech , which wanted in on the ground floor of MR-40, just purchased Taylor Pharm for 30 million dollars and the CEO was about to ride a golden parachute into the Caribbean sunset.

Now I have no problem with any of that; at least not in so far as it involved a legal problem. There was none. I do think 30 mill seemed a bit cheap for a big pharm company that was about to revolutionize cancer treatment. A few more zeroes to the left of the decimal point would seem the more likely asking price. In 2000, the Cleveland Indians, a team that wasn’t revolutionizing much of anything – including bringing an actual championship to Cleveland, sold for 320 million dollars. If a mere baseball team was worth 320 million in 2000 dollars, imagine what a big pharm company that was about to revolutionize cancer treatment would be worth in 2014 dollars? Were I the shareholders of Taylor Pharmaceuticals, I’d would have preferred that Taylor Pharm swallowed a poison pill rather than sell for chump change and would have wanted the heads of the Board of Trustees in a silver mortar.

But undervalued sale prices is not why we’re here. We’re here because of what happened next.

What happened next was that Catwoman used her cat burglar skills to break into the Taylor Pharm R&D department and steal the prototypes of MR-40 and something called ADR-17. Stealing prototype drugs was a little out of Catwoman’s usual M.O. Taking jewelry or art was more her usual line, but someone had hired her to get the MR-40 for him.

Everything was going smoothly until the lab’s security alarm went off as Catwoman was taking the vials of said prototype drugs and some poor schlub of a security guard confronted her with his gun drawn. Catwoman had been hired to steal the MR-40 and ARD-17 prototypes and deliver the MR-40 to her employer. Her employer told her to smash the vial of ARD-17, although he didn’t say how. So, as a distraction, Catwoman threw the ARD-17 at the guard. Who promptly turned into a New 52 version of the Incredible Hulk, except that he was flesh-colored and couldn’t even manage the vocabulary complexities of, “Hulk smash!”

The fight which ensued between Catwoman, the hulked-out guard and the other security guards who answered the alarm spilled out into the party. (Seriously, the Taylor Pharm party ballroom was on the same floor as the R & D labs? That didn’t seem like a security, and maybe even health, hazard to anyone?) Taylor security subdued the security guard with seven doses of a sedative then tried to capture Catwoman, but she made her escape by diving out of a window on the 27th floor.

Catwoman scampered off to deliver the MR-40 to her employer. Those of you who were wondering where and how Batman comes into this story will probably not be too surprised to learn that Batman was Catwoman’s employer. He hired her to steal the MR-40 as a distraction. Her real mission was to smash the vial of ADR-17, which was an experimental steroid offshoot of Venom. (No, not the Spider-Man villain but the DC super-steroid which powers up Bane. (No, not Mitt Romney’s company, but…) So that explains why when ADR-17 hit the security guard, he didn’t just grow like Topsy, he growed like Topsy on… Well, on steroids.

Anyway, Batman decided that a newer, more powerful version of Venom was too dangerous to exist. So while Catwoman was stealing the drugs and destroying the only physical sample of the steroid, Batman was wiping the formula and all of the ADR-17 research files off of the Taylor Pharmaceutical computers and servers.

Tomorrow, the new owner of Taylor Pharmaceuticals, Bruce Wayne, would reassign all the people working on ADR-17 to work on restoring MR-40 and, he hoped, no one would even notice that the experimental steroid was missing. Although given what happened to the security guard, someone is probably going to suspect something. But that’s why Batman also set off the security alarm, so that the guards would see a masked cat burglar stealing prototype drugs and assume she made off with both the MR-40 and the ADR-17, too.

Now I’m not a ruler-wielding nun in a parochial school, I don’t even play one on TV. But if I were, I’d probably tell Batman he needed a time out to think about what he had done.

What had he done? Well, he hired Catwoman to break into a research lab and steal the prototype of a valuable new chemotherapy drug, that’s what he’d done. And what laws did he break by these actions? You know my methods, apply them.

But to point you in the right direction, you might remember that Gotham City is supposed to be somewhere in New Jersey and start with the New Jersey statutes governing conspiracy, complicity (or aiding and abetting, as those of us who aren’t fancy-word-slinging state legislators call it), burglary, theft, and assault. That should be enough to let you hit the ground running.

I’m not concerned with the crimes Batman committed, however. I’m more concerned that in order to stop development on a new steroid, a potentially dangerous new steroid I admit, he interfered with the development of a new chemotherapy drug for the treatment of cancer. Even if Batman’s actions only delay the development of said drug by, say, a week, that’s one week later that said drug will come onto the market. And, because we’re talking about a drug designed to fight and control the spread of cancer, even one week could mean that several people might die, who would not have died if said drug had been delivered to the market one week earlier.

Batman, or Bruce Wayne but for our purposes what’s the difference, was about to take over Taylor Pharmaceuticals. He could have ordered all work on ADR-17 to stop. He could have ordered that all files on ARD-17 be destroyed. He could have….

Well, he could have done lots of things. Surely there were other ways that Batman could have arranged for work on ADR-17 to stop without potentially endangering the lives of untold cancer patients.

Batman’s actions were callous, uncaring and, frankly, mean. And, in this case, I’m not sure that the ends – destroying ADR-17 – justified the mean.

The Law Is A Ass

THE LAW IS A ASS #323: Insane in the Bat Brain

df742dcc8d326a4aea7b20db3459ee50Insanity, they say, is hereditary; you get it from your kids. Not me. My insanity comes from comic book stories. Comic book stories like Batman: The Dark Knight # 29

This story featured as its bad guy one Abraham Langstrom. Unlike Tevya, Langstrom was a rich man. Not just the one percent rich, he was in the one percent of the one percent. He was so rich, he used 50 dollar bills to light 100 dollar bills then used them to light his cigars. He was also a self-styled corporate raider of such ferocity that even William Quantrill would have thought Langstrom gave raiders a bad name.

Langstrom considered himself an overlord, one of the ones who had to make tough choices to “ensure that the system runs smoothly for those who matter.” To Langstrom a poor or homeless man was, “a bum who bloodsucks valuable resources from contributing citizens, straining Gotham’s social services cashing another welfare check.” I’m guessing Langstrom wasn’t one of those “compassionate conservatives” you hear about.

Because Langstrom considered himself to be an overlord who had to make the tough choices, it shouldn’t surprise you that he made several. And because he’s a man named Langstrom in a Batman story, it shouldn’t surprise you that Abe’s son, Kirk, was the man who invented the Man-Bat serum. Nor should it surprise you that Not-So-Honest Abe’s tough choice involved said Man-Bat serum.

The tough choice that Abe made was to drink the Man-Bat serum and become a Man-Bat. Then he hunted down the homeless who took from his city without contributing to it, killed them, and sucked their blood. Yes, vampire imagery in a story about a ruthless one-percenter. The subtlety boggles the mind.

Because this is a Batman story, it should also not surprise you that Batman got on Abe’s trail. I mean, what kind of Batman story would it be if he never went after the bad guy? What might be a surprise to you, however, is that…


Batman caught him. Hey, nowadays so many of the comic book bad guys get away at the end of the story, telling you that Batman actually caught one is something of a spoiler. But Batman catching the villain wasn’t the end of the story. The ending was…


when the jury found Abraham Langstrom not guilty by reason of temporary insanity. Which is where my own insanity came into play. As in these things drive me crazy.

The doctor who taught my law school Law and Psychiatry course told us that there isn’t any such thing as temporary insanity. Temporary insanity argues that the defendant was insane at the time of the criminal act, but the insanity didn’t last and the defendant is feeling much better now. It’s argued in an attempt to have the defendant found not guilty by reason of insanity but avoid having him committed to an asylum afterward. The regular insanity verdict does the exact same thing. So, like landing gear on an ocean liner, a temporary insanity verdict isn’t necessary.

In the United States a defendant is found to be not guilty by reason of insanity – or NGRI, because only a crazy person wants to keep typing “not guilty by reason of insanity” over and over – when he commits a crime and, at the time of the criminal act, he had a mental defect or illness that so affected him that he did not know the wrongfulness of his act. (Yes, I know I’m using the dreaded universal masculine here. Are there any women out there who want to complain because I’m not calling them insane?) Anyway, insanity only concerns itself with the defendant’s mental condition at the time of the criminal act. It doesn’t concern itself with the defendant’s mental condition either before or after the crime.

Say a man has mental illness which gives him the delusion that another man is a Great White dropped out of the sky by a Sharknado, so kills him. He would be NGRI. He had a mental illness. His mental illness gave him a delusion and because of that delusion, he didn’t know the wrongfulness of his act. After all, it’s not against the law to defend oneself from a shark. It might also not be against the law to kill someone to prevent him from making Sharknado 3, but that’s another column for another time.

If the defendant was found NGRI, the judge can’t send the defendant to prison. Remember, the NG part of NGRI is “not guilty.” The defendant wasn’t convicted of the crime, so he can’t be sent to prison. That would violate the defendant’s Fourteenth Amendment not to be deprived of his liberty without due process of law. Instead, the judge will order that the defendant undergo treatment for his mental illness. And, because the defendant was not guilty, the treatment must be in the least restrictive environment consistent with the defendant’s treatment. Anything harsher would also violate the defendant’s aforementioned right to liberty.

So what happens after an NGRI verdict? The judge will order doctors to perform a mental evaluation of the defendant. If the doctors find he is still mentally ill, they will make a recommendation of what treatment is the least restrictive.

If the defendant is violent, the doctors will recommend the defendant be confined and treated in a high security asylum for the criminally insane such as Arkham. If the defendant is not violent, the doctors might recommend treatment in a less-restrictive mental health institution. And if the defendant’s mental illness can be controlled with treatment and medications so that he doesn’t manifest any further symptoms of the mental illness, the least restrictive environment would be supervised release with the condition that the defendant continue taking his medications.

Defendant’s who have been found NGRI are continually evaluated for their present mental condition. If the doctors ever determine that the defendant no longer has any mental illness, they will tell the judge that the least restrictive environment is outright release. If the judge agrees, the judge must order the defendant to be released. Under the Fourteenth Amendment, the defendant can only be confined in a mental health institution for as long as is required to restore his or her mental state. If he is cured, then he must be released.

So what would really have happened in Langstrom’s case is not a jury finding of temporary insanity. The jury would have found Langstrom NGRI. Doctors would have evaluated Langstrom. Those doctors would have determined that Langstrom had been insane because of the effects of the Man-Bat serum but now that it wasn’t in his system, he was no longer mentally ill. Then the judge would have ordered Langstrom released. See, the NGRI verdict does everything that a temporary insanity verdict could do. So the temporary insanity verdict is unnecessary.

On the other hand, maybe I should hope that there is such a thing as temporary insanity. After all, Batman wasn’t insane in his early days, but he sure acts like he is now. And the Batman fan in me has got to hope that the condition isn’t permanent.

The Law Is A Ass


millie_the_model_by_hectorrubilar-d6x3eq7Blame my friend Hurricane Heeran for this one. I do.

He wanted me to write about the legal aspects of Models, Inc. # 2. I told him that I hadn’t read the comic, as the series didn’t sound the least bit interesting to me. Here’s how Marvel Comics described Models, Inc. “Fashion Week is always a hectic time for models, and this year is no exception. Between escaped wolves, robbery attempts, and overly friendly police officers, Mary Jane Watson, Patsy Walker, Jill Jerold, Chili Storm, and Millicent (Millie the Model) Collins are testing the limits of their endurance. But when a brilliant young set designer [Todd Speers] is found murdered with three bullet holes in his back, and Millie proves to be the prime suspect, the models are forced to play detective in order to save one of their own.” Here’s how I described it: “It doesn’t sound the least bit interesting to me.”

But Hurricane was persistent and had a little spare cash to blow. So he blew that cash by buying a copy of Models, Inc. # 2 and sending it to me, so that I could write a column about it. Which puts that whole “my friend” thing into serious question.

The problems Hurricane had with the comic that he wanted me to explore started after Millie the Model made bail. As she was leaving jail, Captain North Norrell, the investigating officer in the Todd Speers murder case asks Millie to stick around, while he talks to the press. She and her lawyer agree.

Is there anything wrong with this? Of course.

Oh, it’s not wrong from a legal standpoint. But no lawyer worth his salt, or even his caraway, would permit his client to participate in such a staged police force publicity stunt just in case the police wanted to do something like, oh I don’t know, accuse his client of committing another murder while on camera. Lawyers tend to care a way lot when bad things like this happen. Especially when they’re bad things the lawyers could have prevented but didn’t.

Did I happen to mention that Captain Norrell uses this staged publicity stunt to accuse Millie of murdering philanthropist Devin Perlman while on camera? Did I really have to?

Actually, there are problems with what Captain Norrell did from a legal standpoint. The only connection between the two murders is that the same gun was used. The gun was Perlman’s, which was taken during a robbery of his home in which he was killed. It was then used to kill Speers and was – in classic Perry Mason cliché – found in Millie’s hand while she was standing over Speers’ body.

Other than the fact that the same gun was used in both crimes, there was no connection between the murders of Perlman and Speers. So by publicly accusing Millie of Perlman’s murder and connecting it up to Speer’s murder, Captain Norrell has significantly hurt the state’s chances of getting a fair and impartial jury to try Millie. Prosecutors don’t like grandstanding policemen, who go public and jeopardize their cases. Especially prosecutors in fiction stories. Prosecutors in fiction stories are always running for governor so want to do the “going public” themselves.

Prosecutors also don’t like it when police captains take the main suspect aside for a private conversation and ask a defendant who already has hired an attorney – “lawyered up” as NYPD Blue used to call it – to confess so things will go easier on them but do so without the defendant’s lawyer being present. See, if the defendant does happen to confess, the whole confession might be thrown out of court, because the police captain spoke to the “lawyered up” defendant without the attorney being present; a strict no-no. Annoying how those pesky little constitutional rights keep getting in the way of shoddy police work, isn’t it?

Do I have to mention that Norrell took Millie aside without her lawyer to try to get her to confess, too?

Hurricane was also bothered by the fact that Captain Norrell was able to acquire a search warrant to search the townhouse of well-known multi-millionaire Kyle Richmond, because Millie was staying there. I don’t have a problem with that, per se. Cops can, and do, routinely obtain search warrants for the places where murder suspects were staying to look for evidence.

I do have a problem with Captain Norrell’s publicly admitting that the search was basically a “fishing expedition” to see what evidence they might find, “because that’s a good way to catch fish.” Judges issue search warrants when the police can convince them that they have probable cause to believe that evidence of the crime will be found in the place they want to search. They don’t like to issue search warrants when all the cops can do is say, we want to poke around in a fishing expedition and see what we might turn up because that’s a good way to catch fish.

Search warrants issued for those reasons have been known to be held invalid. Even by the Rehnquist Court.

And judges especially don’t like to issue search warrants when all the cops can do is say, we want to poke around in a fishing expedition and see what we might turn up and the search is for the town house of a prominent multi-millionaire, who could help finance the campaign of the person who’s running against said judge come re-election time.

Now my personal favorite scene in the book was when Johnny (The Human Torch) Storm and two of Millie’s model friends break into Todd Speers’ apartment and search it for evidence. The apartment is a sealed crime scene and they steal evidence that they found hidden in the apartment, so what they’re doing is all sorts of illegal in all sorts of ways. Before they committed this highly illegal act, Johnny Storm and the two models told Millie they were going to do it, but also told Millie she couldn’t come along, because, “if she was found here breaking into the sealed apartment of the man she’s accused of murdering, it would look… bad.”

Riiiiight, cause it looks soooo much better when her friends do it for her.

Well, that’s all I’ve got to say about Models, Inc. # 2 except this: I have to issue a


because I’m about to reveal how Models, Inc. # 2 ends.



With the words “…To be continued!”

Hey, this was the second issue of a four-issue mini-series, how else was it going to end?

Author’s Note: This is another column I wrote for Comics Buyers’ Guide which was never published before the publication ceased operations.


original-300x153-3825655I suppose Marvel decided to call its evil super-corporation Roxxon, because the name sounded like real-life super-corporation Exxon, but not so close that it would get them sued, and because, back in 1974, the Comics Code wouldn’t have let Marvel call it Roxxoff. And now, having gone for the cheap laugh, let’s move on to a discussion of Roxxon and Thor: God of Thunder# 19.

Roxxon’s history is as checkered as a table cloth in an Italian restaurant. And twice as dirty. It’s reputed that back in the day, when it was called Republic Oil, Roxxon had Tony Stark’s parents killed. Its scientific R & D subsidiary, The Brand Corporation, routinely creates super villains to fight for Roxxon’s interests through such socially uplifting tactics as industrial sabotage. It covered up the disaster when a technology it was developing to beam solar power by microwave transmission went out of control and killed all 200 people in Allantown, Iowa. It tried to find alternative energy sources by kidnaping and studying super heroes. It hired the super villain Flag-Smasher to engage in a murder plot at the United Nations. And that’s just what I learned from Wikipedia. Imagine what I could have found out if I’d had the time to read all of Roxxon’s prior appearances in the comic books.

Anyway, Roxxon was clearly not the poster child for the Good Neighbor Policy. Then it was purchased by the Kronas Corporation.

Kronas was a front organization for the Red Skull, when he was inhabiting the body of former KBG general Aleksander Lukin. Its goal was destroying the democratic capitalist system in general and the United States in particular. And it had ties to terrorist organizations that were being investigated by the United States government. I can’t imagine that era in Roxxon’s history did much for its public perception.

But now, as we learned in Thor: God of Thunder # 19, Roxxon was the “all-new” Roxxon Energy Corporation. It was, once again, its own master and not under the control of the Kronas Corporation. According to its new CEO, Dario Agger, Roxxon was trying to establish itself as a new and benevolent super-corporation. After all, “Roxxon is the world’s wealthiest and most powerful super-corporation. If we don’t know what’s best for the people of this planet, then … who does?” I haven’t heard such uplifting words of public conscience since General Bullmoose.

Roxxon’s first step in its program to prove its benevolence to the world was to supply the planet with much needed drinking water by mining icebergs on Europa, one of the moons of Jupiter, and exporting them back to Earth. Water mined on a moon of Jupiter and shipped back to Earth for human consumption? Assuming the government didn’t immediately quarantine the aqua Eurpoa until it could verify that it didn’t contain lethal alien toxins – assuming Roxxon could actually sell it to the world – well what was that going to cost? That stuff would make Kona Nigari Water look like plain old Evian by comparison.

Now we long-time Marvel readers have learned not to trust Roxxon or its previous CEOs. So it’s understandable that we’re skeptical of Mr. Agger and whatever his agenda for Roxxon truly is. Especially when you consider Agger’s nickname in business school was “The Minotaur” and the cover to the comic shows an actual Minotaur on it. I took English, I studied foreshadowing and that can’t be good.

Moreover, we’re not alone in not trusting Mr. Agger. Neither does Rosalind Solomon, an environmental field agent for S.H.I.E.L.D. Difference being, while we suspect Agger and Roxxon are up to no good – mostly because we haven’t had a chance to read Thor: God of Thunder# 20 yet – Ms. Solomon is quite vocal about her suspicions. “If Roxxon gets caught breaking the law, they simply pay to have the laws changed.”

You know, Roz, Roxxon may be good at being bad, but it’s not that good.

There are many things Roxxon could do with its lots of money to avoid being convicted of the crimes it commits. It could bribe juries to find them not guilty. It could bribe prosecutors or members of the Justice Department not to bring charges. It could bribe judges to rule key evidence was not admissible. It could even become such a super-duper super-corporation that the Justice Department would deem it “Too big to jail.” The one thing it couldn’t do, and hope for any degree of success, would be to bribe lawmakers to change the laws, after they’ve already broken them. Because it doesn’t matter what happens to the laws after you break them.

If you do something that, at the time you did it, was illegal, you broke the law. It doesn’t matter that the law gets changed after you broke it. If it was against the law, you can be prosecuted. If the law got changed after you broke it and what you did is no longer a crime now, you still broke the law. And you can still be prosecuted.

People in Colorado who were convicted of possessing marijuana in October of 2012, didn’t suddenly become non-criminals in November of 2012, when the state voted to decriminalize possession of marijuana. Oh sure, Colorado’s governor might pardon the people who were convicted before the law changed. After all, if Colorado doesn’t deem that behavior to be criminal any longer, pardoning prior offenders would be both a good-will gesture and a way of easing prison overcrowding. But absent something like that, the people convicted before November, 2012 would still be convicted criminals.

In the same way, if Roxxon gets caught breaking some law and pays to have said law changed after it got caught breaking that law, it still broke that law. It can still be prosecuted.

In stating that Roxxon gets away with things, because it pays to have the laws changed after it gets caught breaking those laws, Agent Solomon was showing the same sort of legal acumen demonstrated by the biblical king with whom she shares a name. You know, the guy whose greatest legal triumph was ruling that a baby claimed by two different women should be cut in two because, he assumed, only the false claimant would consent and say, “Yes, I’ll take half a dead baby, please.”


PG60When I was younger, so much, much, much younger than today, there was a television show. Then, when I was a little older, they added a second channel and we got a second show. Eventually that led to four channels and lots more shows. One of those shows was Peter Gunn.

Peter Gunn was a private eye show that aired on NBC  then ABC from September 22, 1958 until September 18, 1961. It starred Craig Stevens as the eponymous P.I. and is probably best remembered for its jazz sound track and the theme song written by Henry Mancini. Even if you’ve never seen an episode of the show, I’ll bet you’ve heard the theme song.

I’ll also bet you don’t think I’m here to write about a TV theme song. There, you’d be correct. I’m here to write about the show. Specifically, Season 1, Episode 28, the April 6, 1959 episode, “Pay Now, Kill Later.”

The episode started with a SPOILER WARNING. Okay, it didn’t start with a spoiler warning. Like many episodes of Peter Gunn did, it started with a murder. It didn’t continue with a Spoiler Warning, either, but I have to. Because in order to discuss the legal ramifications of the episode, I have to give away details of the plot including its ending. So here goes.

John Abbot played a scientist who discovered a new miracle fabric in Manchester, England in 1945. But Abbot didn’t want to share the expected profits of this miracle fabric with his business partner played by Torin Thatcher. So Abbot hired a man who looked a little like him to be a caretaker of the textile mill he and Thatcher owned. Abbot tricked the man into wearing Abbot’s clothes then knocked him unconscious, left the man on the floor of the textile mill, and blew it up. All to frame Thatcher. Thatcher was convicted of insurance fraud for blowing up the mill and manslaughter in his partner’s “death.” (That’s what the show said, manslaughter. Personally, I don’t know why it wouldn’t have been felony murder or even premeditated murder, but I didn’t get a chance to ask the show, what with it being a TV show and rather nonresponsive and all.)

Fourteen years later, Thatcher was released from prison. He had always suspected that John Abbot wasn’t dead and had English detectives trace Abbot to America. Thatcher came to America and hired  Peter Gunn to track down Abbot. Abbot had changed his name and was now the successful head of his own textile firm, but Gunn tracked him down anyway.

When Gunn reported to Thatcher, Thatcher revealed his real purpose; he wanted to kill Abbot for ruining his life. He said he wasn’t worried because, he’d already been convicted of killing Abbot and under the Double Jeopardy Clause of the United States Constitution, he couldn’t be tried for the same crime – killing Abbot – a second time.

Gunn and his police liaison – back then all TV P.I.s had police liaisons just like all sit-com families had wacky next-door neighbors – Lt. Jacoby learned that Abbot was going to exhibit at a fabric show which was conveniently in the same unnamed river front city where Gunn operated. They went to the show to arrest Abbot for murdering the caretaker. But Thatcher also showed up with a gun so he kill could kill Abbot. Gunn and Jacoby tried to talk Thatcher out of this. While they did this, Abbot threw a bolt of cloth at them and bolted himself.

A gunfight ensued, as it did so often in Peter Gunn and virtually every other TV P.I show of the era. Abbot, who had his own gun, shot at Gunn and Jacoby. Jacoby and Gunn shot at Abbot. Then Abbot ran out of bullets and, rather than characteristically throwing his gun at Gunn, just tried to make a break for it. That’s when Thatcher shot and killed Abbot.  Thatcher surrendered to Jacoby and Gunn said, “It should make an interesting trial.”

Not really. It would have been a pretty straight forward trial. Thatcher killed Abbot in front of a respected P.I., a police lieutenant, and several other eyewitness; including the, in the 50s,  stereotypical screaming woman. And Thatcher had no defense.

He had no defense under Double Jeopardy Clause of the Fifth, because it didn’t apply to his case. As Gunn and Jacoby pointed out, the Double Jeopardy clause commands that a man cannot be tried for the same crime two times.  But Thatcher’s killing of Abbot wasn’t the same crime. After being framed, Thatcher had been convicted of killing Abbot in Manchester, England back in 1945. That wouldn’t apply to his actually killing Abbot in America in 1959. To quote the show’s accurate statement, “It’s a new and separate crime. Another time, another place.”

Nice to know that this low-budget half-hour TV show from 1959 managed to get the law correct, considering Double Jeopardy, the big budget 1999 movie starring Tommy Lee Jones and Ashley Judd, with basically the same premise got it all wrong. Repeatedly.

See Double Jeopardy doesn’t actually apply to the crime charged, that is what penal code violation was committed – in this case murder. Double Jeopardy applies to the criminal act that was committed. If you kill a man in 1945 that’s one criminal act. If you kill a man in1959, that’s a separate criminal act. You may get charged under the same statute, but you’ve committed two distinct and different criminal acts. You haven’t committed the same crime, you’ve violated the same statute two different times.

Even if the victim of both crimes happens to be the same man, because you didn’t really kill him the first time around, it doesn’t matter; it’s still two distinct acts and two distinct crimes for which you can be prosecuted two distinct times. Oh, you may be able to sue for wrongful imprisonment for the first murder prosecution, as you obviously didn’t commit that murder, what with the purported victim being alive and all. But you’d be enjoying your money in prison after being convicted of the second murder.

Suppose Baby Face Braunschweiger and the Light Fingered Five Minus Two rob the Frostbite Falls Bank in 1961, then are caught and convicted. Does that mean that, after they’re released, they get to rob the Frostbite Falls Bank any time they like with impunity, because they’ve already been convicted of that crime? No. They have been convicted of the crime once, but each time they rob the bank, they’re committing a new act. They may be breaking the same law, but they’re breaking it a second or third or fourth time. Even under Double Jeopardy, they can be prosecuted a second or third or fourth time. One prosecution for each new criminal act they commit.

And, in case you were wondering, because I said “Thatcher has no defense,” Thatcher can’t use self-defense in his trial, either. Yes, Abbot had been shooting at him and Gunn, and Jacoby. But there are two problems with him using self-defense. First, you can’t use self-defense if you are responsible for putting yourself in jeopardy in the first place. You can’t start a bar fight with someone then, when your opponent hits you back, get to claim self-defense when you hit him back for hitting you back. When Thatcher confronted Abbot with a gun and said he intended to kill Abbot, he initiated the confrontation. In this scenario, Abbot would be able to shoot at Thatcher in self-defense, but Thatcher wouldn’t be able to shoot back.

Second, when Thatcher shot Abbot, Abbot was out of bullets and running away. At that point, he no longer presented an immediate threat of bodily harm that necessitated any defense. So, again, self-defense wouldn’t apply.

I offer this week’s column as a public service. If you’re thinking of framing yourself for a murder that didn’t happen so that you can be convicted and go to prison, in the hopes that years later, you can then murder the still-living victim for real and not be prosecuted because of Double Jeopardy; don’t. That defense won’t work.

Insanity, on the other hand…


cq140526Every Monday I read Inspector Danger’s Crime Quiz. You’ll notice I didn’t say read with pleasure. Usually I don’t.

I’m a big fan of whodunits with their intricate plots and subtle clues and challenging mind games. Inspector Danger’s Crime Quiz, a weekly comic strip syndicated by the Universal Press Syndicate and available on UPS’s, is a whodunit; but one without the intricacies, subtleties, and, usually, the challenge. Each week The Inspector’s one-page comic story presents us with a mystery and the clues necessary to solve it. Then the actual solution is printed upside down on the bottom of the page.

The problem is that the mysteries are frequently inane and the solutions preposterous. Like the recent one about a burglary at an art collector’s house. The collector said his dim-witted cleaning lady, who he keeps because she has a cleaning compulsion, saw the burglar. She did but couldn’t identify him. The Inspector saw the broken glass in the door the burglar used to enter the house and noted there was no broken glass on the floor. He deduced the cleaning lady must have broken the window herself to pretend there was a theft, then gave into her compulsive cleaning and cleaned up the broken glass. Somehow that proved that she was the thief and there was no burglar.

Problem is, if the cleaning lady’s compulsion was so strong that she’d clean up glass she broke herself to fake a burglary, she’d have had the same compulsion to clean up the broken glass if it had really been broken by a burglar. So the absence of broken glass only proved that the cleaning lady compulsively cleaned it up, not who broke it.

That’s an example of when the strip’s solution is stupid. Sometimes the solution isn’t stupid, just annoying. Like the May 26th installment.


The Law Is A Ass #318: Batman Flunks His Testimony

lawassContrary to popular belief, the Fifth Amendment  is not the one that repealed Prohibition. And, contrary to popular belief, the Fifth Amendment is not what we’re talking about today. (Hey, I had a snappy opening joke to go with the Fifth Amendment but nothing for the Sixth Amendment. You wanted I should let it go to waste over a technicality?)

Last time, we were here together, I promised to explain why Batman would not be able to testify in a courtroom in DC’s New 52 continuity, even though he could in the old continuity. If you’ve been paying attention – and considering we’re only two paragraphs into this column, if you haven’t been paying attention you really should get your attention span checked – you can probably guess that said explanation involves the Sixth Amendment.

The Sixth Amendment is one of the two amendments in the Bill of Rights that deals with the rights of the accused in a criminal trial. It creates a list of rights which it grants to all defendants in criminal proceedings. For our purposes today we’re only going to deal with one of those Sixth Amendment rights; the defendant’s right to confront the witnesses against him or her. Hey, there are eight of those rights in the Sixth and if we were going to talk about all eight, we’d be here all day. I don’t know about you, but I’ve got plans for tonight.

The right of confrontation means more than that the defendant gets to sit in the courtroom and glower at the witnesses while they testify. It doesn’t, however, go as far as allowing the defendant to get up in the witness’s face or physically assault the witness, like they were on an episode of The Jerry Springer Show. No, the right to confrontation lies somewhere in between; and I don’t mean Dr. Phil. What it means is that the defendant gets to cross-examine the witnesses who testify for the prosecution.

Cross-examination, which the noted legal scholar John Henry Wigmore called “the greatest legal engine ever invented for the discovery of the truth,” means the accused gets to ask the witnesses questions designed to attack the witness’s testimony and, if possible, cast doubts on the witness’s credibility. Among the ways in which a defendant may seek to attack a witness’s credibility is to show that the witness is a convicted criminal so not worthy of being believed. Another is to show that the witness has a bias in the case, such as the witness hates the defendant, or the witness wants to get the defendant out of the way so he could make the moves on the defendant’s girlfriend or the defendant knew the witness was secretly a bigamist, or any of the dozens of techniques we watched Perry Mason employ over and over again in nine seasons of the original series, half a season of the failed revival with Monte Markham, and 26 made-for-TV movies with the original Perry and Della back again. Basically, anything that would show the jury that the witness has a motive to lie about the defendant. Another technique, which can be employed on some occasions, is to show that the witness has a generally bad reputation for honesty, so is not a person whose statements or testimony should be believed. There are others, but these will suffice for our discussion today.

They suffice, because they all have something in common. In order for the defendant to be able to use any of those cross-examination tactics, the defendant has to know who the witness is. A defendant can’t very well establish a witness’s bias or past criminal record or reputation for honesty if the defendant does not know who the witness is.

Which brings us to Batman. We, the readers, may know that it’s Bruce Wayne under that cowl with the twin cell towers doubling as ear pieces, but the court doesn’t. And, more important, the defendant and his or her attorneys don’t. How does the defendant prove Batman has bias or a motive to lie about or a bad reputation for truth, if the defendant doesn’t know who the hell Batman is behind that mask? He doesn’t.

Which is why American courts are generally about as accepting of allowing masked witnesses to testify as Sheldon Cooper is of accepting change; either an alteration of his routine or pocket money from someone when he doesn’t know where those pockets may have been. No, as a general principle, masked witnesses cannot testify in American courts, because it would deny the defendant his right to confront the witness.

Now this is not a hard and fast rule. Some courts allow for some degree of witness anonymity in cases where the witness would face danger should the witness’s identity be revealed to the defendant; such as a detective who is in the middle of an undercover operation and can’t be outted or an eyewitness who fears retaliation. (I think the courts would be hard-pressed to rule that Batman was afraid of retaliation, considering putting himself in the path of retaliation is what he does on a daily basis.)

Courts also allow witness anonymity in cases of “forfeiture by wrongdoing” such as the defendant, or the defendant’s friends, threatening a witness and making the witness reluctant to testify. When this happens, courts rule that the defendant waived the right of confrontation by his or her wrongdoing. Again, I don’t think many courts would find that a defendant’s threats against Batman would hold much sway or cause him the slightest reluctance. If anything, they’d be more likely to encourage him.

In other cases, courts have allowed a witness to testify anonymously when the witness’s true identity was known to the prosecution and the prosecution supplied to the defendant the potential materials that the defense could use to impeach that witness. That could apply to, say, Captain America, because someone like Nick Fury could voucher for the man behind the mask, but it would not apply to the Batman, as no one knows who he is, not even the Gotham City Police  or the District Attorney’s office. So no one could supply the defense with Batman’s impeaching information.

Without some constitutional amendment or federal law in the DC Universe which allowed for masked super heroes to testify in criminal proceedings, it is unlikely that Superman, Flash, Batman or any of the other DC heroes with secret identities could testify.

The old DC continuity actually had such a law that regulated the activities of masked super heroes. It was called the Keene Act. And according to our own John Ostrander, said act was modified by an amendment which, among other things, provided for how masked super heroes could testify; an amendment which, I immodestly note, John called “The Ingersoll Amendment.”

So under the old DC Universe continuity, Batman would have been able to testify. However no such legislation exists in the New 52 DC universe continuity. I know this because of Justice League# 30. In that story, Len (Captain Cold) Snart talks to Jake Shell “Parole Officer to the Rogues” and complains that even though Lex Luthor credited Captain Cold with helping to save the world from Forever Evil , the Flash won’t stand idly by and let Captain Cold walk free. Shell answers, “Unless the Flash unmasks and testifies under his real name, they’re not going to let him speak at your hearing.”

So it’s established that in the New 52, masked super heroes can’t testify at a parole hearing. Parole hearings are more informal proceedings and courts have held that the defendant’s panoply of trial rights – such as the right to confrontation – don’t apply as fully there as they do in an actual trial. So, if a masked super hero can’t testify under the relaxed procedures of a parole hearing in the New 52 world, a masked super hero will not be able to testify in a New 52 trial.

Or won’t until someone writes a story in which he or she really needs a masked super hero to testify, then that writer will figure out a way for it to happen. Then masked super heroes will be allowed to testify in the New 52 and I’ll probably get a new column out of it.

Writers of the New 52, the ball is in your courtroom.

The Law Is A Ass # 317: Two-Face Makes A Dent In Crime

When lawyers talk about Miranda, we mean the Supreme Court case of Miranda v. Arizona and not a Brazilian movie star famous for her samba singing and fruit-laden hats that were so big they must have caused neck strain. When comic books talk about Miranda, it’s more of a crap shoot. I assume they’re talking about the Supreme Court case, but…

Well let’s put it this way, the banana on Carmen Miranda’s hat probably has more accurate knowledge of Miranda v. Arizona than the average comic book story. Case in point: Batman and Two-Face #27. (Or, maybe that should be court case in point.)