Category: The Law Is A Ass

The Law Is A Ass #445: The Justices Tell Daredevil SCOTUS Hell

I trust none of you doubted me.

I told you last column that the Supreme Court of the United States https://www.supremecourt.gov would accept jurisdiction over Matt (Daredevil) Murdock’s appeal in the case of New York v Slugansky. And in Daredevil Vol 5 #25, there he was before the Supreme Court arguing that the New York Court of Appeals was wrong when it reversed a lower court’s ruling that masked super heroes should be allowed to testify without revealing their real identities and that the Supreme Court should reverse the New York Court of Appeals and reinstate both Slugansky’s conviction and the lower court’s ruling permitting masked super heroes to testify anonymously.

Of course, I had a slight advantage. I read Daredevil #25 months ago. I wrote that last column with it’s will he or won’t he get to the Supreme Court line this month. So I sorta, kinda, already knew what the Supreme Court did before I wrote that cryptic closing.

Before Matt actually set foot in the Supreme Court building, he made a stunning confession to his friend and former law partner Franklin (Foggy) Nelson. Matt admitted he took a dive. He lost the appeal in the New York Court of Appeals on purpose just so he could argue the case before the US Supreme Court and create precedent that would cover not just New York but the entire country.

Which, as professional ethics go, is only slightly better than pushing your client under an oncoming steam roller after having picked his pocket. Better, but still messier.

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The Law Is A Ass #444: So, Is Daredevil Appealing?

The Law Is A Ass #444: So, Is Daredevil Appealing?

The Lord giveth and the Lord taketh away. Sometimes. And sometimes it’s a bunch of old people in robes.

Matt Murdock won a big victory in the New York Supreme Court. He convinced the judge presiding over the trial of Simon Slugansky to allow Daredevil to testify while still masked and without revealing his secret identity. He won a second big victory in the Appellate Division of the Supreme Court, when it upheld Slugansky’s conviction. Then he lost it all when the Court of Appeals, the highest court in New York, reversed Slugansky’s conviction 4-3. We didn’t see the actual ruling in the story, but I’ll assume it ruled masked super-heroes could not testify without revealing their masked identities.

Now you may be wondering how could that happen? No, not how could Matt have lost in the Court of Appeals. I spent the last two columns telling you why Matt should never have won in the Supreme Court, let alone prevailing in a court of appeals. You’re wondering how the Court of Appeals could be the highest court in New York and the Supreme Court could be the lowest.

The answer is simple. That’s how New York chose to name its courts. The Supreme Court is the trial court in the superior courts, the Appellate Division is the first level of appellate court, and the Court of Appeals is the highest court.

Yes, I know it goes against common sense. After all, according to Dictionary.com supreme means “highest in rank or authority.” That would mean that the supreme court should be the highest court. And for most of us the Supreme court is the highest court in our states or, in the case of the federal Supreme Court, the highest court in the land. Just as God, the supreme being, should be the highest personage in the heavens.

Except those of us who are married know that God isn’t the highest. That would be Mrs. God. So, if the supreme being isn’t the highest being, maybe a supreme court doesn’t have to be the highest court. New York took advantage of that little loophole and decided to give its appellate courts skewed appellations.

Is this the end of Matt’s plan to allow masked super heroes to testify while masked? If I were to tell you that Daredevil vol 5 #24 was only the fourth part of the “Supreme” storyline and that a five-part story would fill out a nice trade paperback collection much better than a four-part story would, would that answer your question?

Of course it’s not the end.

Matt decided to appeal the Court of Appeals opinion to the United States Supreme Court by filing a petition for a writ of certiorari. A writ of Certs and Dory? What’s that?

A petition for a writ of certiorari is a legal pleading filed with the United States Supreme Court which asks the court grant certiorari over the case so it can accept jurisdiction and rule on its merits. It’s how most case are appealed to the US Supreme Court.

There was just one little hitch in Matt’s plan; his boss. Manhattan District Attorney Ben Hochberg had all the backbone of cream of mushroom soup without the mushrooms and was reluctant to appeal.

According to Hochberg, the case was a, “spectacle” that would “reflect[] on [his] office. If Matt were to lose in the Supreme Court, “you’ll look like a maniac, tilting at windmills. It’ll end your career.”

Losing a high-profile case in the Supreme Court would end your career? That must have been news to Henry Wade, the district attorney for Dallas, Texas. He lost the high-profile case of Roe v. Wade in the Supreme Court in 1973 and continued to serve as Dallas DA until 1987.

Ben, old boy, lots of people lose in the Supreme Court. Statistically speaking about fifty percent of all litigants lost in the Supreme Court. And it didn’t end their careers. In fact, arguing a case in the Supreme Court – win or lose – is considered a rarefied honor in the legal profession; one which usually opens more doors than it closes. So stop acting like Zachary Smith’s even more-cowardly brother and let Matt do his frikkin’ job already.

To his credit, Ben did let Matt appeal. Reluctantly, and with some crippling restrictions. “I won’t stop you – it’s still your case – but you’re on your own. D.A. resources and personnel are off-limits.” Which, of course, they can’t be.

Ben was wrong when he said it’s Matt’s case. It isn’t. It’s Ben’s case. Matt isn’t a party to the case. The parties are Simon Slugansky as defendant and the state of New York as the Plaintiff. As New York isn’t an actual person, it can’t actually appear in court. Yes, most courtroom doors are double wide, but you still can’t get an entire state through them.

New York has legal representatives who appear in its stead. In criminal cases, said legal representatives are the districts attorneys. As the District Attorney for Manhattan, Ben Hochberg’s the legal stand-in for New York in the case. It’s his name which appears on all the pleadings. Matt can sign the pleadings and argue the case, but only as the duly authorized representative of District Attorney Ben Hochberg.

So Ben literally can’t forbid Matt from using the office resources. Yes, he can say Matt can’t use the officer personnel to help him, can’t use the office computers, can’t use the office Lexis or Westlaw accounts to research the case, can’t even use the office staplers to hold the briefs together better than Ben’s reasoning holds together. But at the end of the day, or the beginning of the day or the middle of the day, or whatever part of the day Matt finishes up his writ and is getting ready to send it off to the Supreme Court; Ben can’t deny Matt all of the resources of the office of the District Attorney for Manhattan. When it comes time to sign the writ, Matt still has to sign it as a representative of Ben Hochberg.

Win or lose, Ben, your name still has to be on that writ somewhere. So, Ben, don’t you think in the long run it would be better for your name and your office to give Matt all the resources he needs to win the case considering your name and your office will be part of the case no matter what you do.

The issue ends with Matt Murdoch persuading his former law partner, Foggy Nelson, to help him prepare the writ, but without any mention of whether they actually get the case before the Supreme Court. What do you think, will they get there?

Before you answer, remember this: earlier I said this was only part four of the “Supreme” storyline and that trade paperbacks work much better with five- or six-part stories. That means it’s very likely that Daredevil vol 5. #26 will be “Supreme” part five, and if Matt and Foggy don’t get their case in front of the Supreme Court, what are they going to fill the issue with? The Three Stooges’ “Disorder in the Court?”

The Law Is A Ass #443: Daredevil Has To Prove He’s The Devil You Know

How do you prove that you’re you?

Testimonials from family and friends. DNA tests. Those embarrassing Facebook photos that no one but you would ever post.

But how do you prove you’re you, if nobody other than you knows who you are?

That was the problem facing Daredevil in Daredevil v 5 #22. He had convinced a judge to let him testify in court against one Simon (Slug) Slugansky while still wearing his mask and without revealing his true identity. Okay, he hadn’t convinced the judge, Daredevil’s unrevealed secret identity of assistant district attorney Matt Murdock convinced the judge by way of a legal motion. How Matt did that, I don’t know, as I laid out in my last column. But he did. However, now, in order to testify, Daredevil had to convince the court that he really was Daredevil under that bright red costume, because, as the judge put it, “Anyone can put on a suit, Mr. Devil.”

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The Law Is A Ass #442: Daredevil Shouldn’t Give A Testimony-Al

It’s nice to know Daredevil paid attention. I just wish he had stayed for the whole lecture.

For as long as there have been costumed heroes, there’s been the problem of what do those heroes do with the bad guys after the heroes catch them. Mostly they just left the bad guys behind for the police to arrest and hoped that the criminal justice system would sort it all out. As I have mentioned in the past, that wouldn’t work.

When the costumed hero was the only witness to the bad guys’ badness – as was frequently the case – the criminal justice system would need the costumed hero to testify. And that could be problematic. Problematic? Compared to that task, booking Alexander Hamilton himself to join the touring national company of Hamilton is just problematic.

Nevertheless, in Daredevil Vol 5 #22, Matt Murdock, Daredevil’s secret identity and an assistant district attorney, devised a plan by which masked heroes could testify without taking off their masks. His first step was to have Daredevil testify at the trial of Simon Slugansky, AKA Slug.

(Wait, wasn’t there already a Marvel villain, Ulysses X. Lugman, who went by the sobriquet Slug? We really have run through all the good names when we’ve got people claim jumping Slug?)

I’ll spare you the long-winded legal arguments that went down in the case, mostly because the story spared us those arguments. It didn’t actually tell us what arguments Matt made to convince a court that having a masked super hero testify didn’t violate the Sixth Amendment’s right of confrontation. All it did was play coy lip service to the arguments with lines like, “You like the section that responds to your Rovario argument and the U.S. v. Sanchez argument is particularly clever as well.”

So the story knew enough to know that Rovario and Sanchez were leading cases on the question of whether an anonymous witness may testify without revealing his or her identity but not enough to know what arguments could be raised to counter their holdings. That’s kind of like knowing that two plus two equals, without knowing what it equals.

All we know is that after an in-chambers hearing, the judge presiding over the case came out and said, “The prosecution has convinced me that the man who wears this mask is not anonymous. In fact he is very well known. He is Daredevil. We know his powers and his long-standing stance against crime. He has helped this city and this world in countless ways. Various courts have affirmed the idea that under certain circumstances, witnesses can offer confidential testimony – the Seventh Circuit, even the U.S. Supreme Court. In my view, Daredevil satisfies these conditions.”

Which is where I call BS, even though BS is usually called something a little bit stronger. It is true some courts have held that witnesses may testify while concealing their identities from the jury, the defendant, and their attorneys. In the 1987 espionage trial of Clayton Lonetree, the courts agreed to let a government intelligence agent testify without revealing his true identity to the defendant or his attorneys. In 2008, a Chicago court allowed Israeli intelligence officers to testify against a man accused of aiding Hamas without revealing their identities to the defendant or his attorney. But here’s the thing, in each of those cases, the witnesses testified confidentially but not anonymously. I say not anonymously, because somebody knew the witnesses’ real names.

In order to balance the prosecution’s need of the confidential witness with the defense’s right to cross-examine the witnesses, courts have required that before it would allow a witness to testify without revealing his or her identity to defense counsel, people who knew the witness’s true identity answer some preliminary questions about possible impeachment information. Information such as, Has the witness ever been convicted of a felony? Does the witness hold a bias in this case that would affect his or her testimony? In this way, the prosecution could protect its witness, but the defense would get some of what it needed for cross-examination.

So when the judge ruled that Daredevil was not an anonymous witness, the judge was just wrong. The court, the attorneys, the jury and the public at large might know what Daredevil stood for and how many times he helped the city or the planet. However, Daredevil was still an anonymous witness, because after the Purple Children used their mind control powers to make everyone forget Daredevil’s secret identity, no one knew who Daredevil was. Which meant that the prosecution could not supply Mr. Baden, Slug’s defense attorney, with any information which Baden had a right to know so that he could cross-examine Daredevil.

Had Daredevil ever been convicted of a felony? Who knows. Certainly not the state. Was Daredevil secretly dating Slug’s ex-girlfriend so had a personal reason to want to see Slug behind bars? Your guess is as good as mine and probably better than Baden’s. However, Baden shouldn’t have had to guess, he and Slug had a constitutional right to know the answers before Daredevil ever took his oath.

I think the judge was wrong in allowing Daredevil to testify when no one knew who he was or what impeaching information might exist in his background. The trial court didn’t agree with me – but after twenty-eight years as a public defender I’m more than a little used to trial courts not agreeing with my opinion, even when my opinion was correct. In fact, I’m a lot used to it.

The Law Is A Ass: All Rise by Bob Ingersoll

So the trial court ruled that Daredevil could testify as long as he could prove that he was actually Daredevil under his red costume and mask. How a masked super hero would actually prove that he was who he claimed to be under that mask is something I actually covered in my very first column back in 1983. A column you can read again in – here comes the plug – The Law Is a Ass: All Rise, a recently-published book that collects my first twenty columns and which you can buy right here.

Was Daredevil able to convince the judge that he actually was Daredevil under that costume and testify against Slug? I don’t have the room left in this column to answer that question. So be with us next time for “Who Was that Masked Man?” or “Witless For the Prosecution.”

The Law Is A Ass #441: Flash’s Step-Mom Is Tele-pathetic

The Law Is A Ass

Do I look like a cow to you?

I spent four columns last year – the four when we were playing in the minefield that was the “The Trial of the Flash” episode of The Flash – telling you that Central City district attorney Cecile Horton was really bad at her job. And now, thanks to the March 12, 2019 episode “Failure is an Orphan,” I have to chew that cud again.

Central City district attorney Cecile Horton is really bad at her job. But, to be fair, when it comes to job performance, Cecile’s husband, detective Joe West of the Central City Police Department, is about as sharp as a bag of Nerf Balls.

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THE LAW IS A ASS Installment # 439: Bouncing Ideas Off Superman

In the immortal words of Dorothy Parker… Err, maybe we shouldn’t go there.

Sorry it’s been a while. September until May constitutes a while, cause it’s a bit longer than a little while. Between out of town comic book conventions, trips to Chicago, family vacations, trips to Chicago, holidays, even more trips to Chicago – including a lengthy one to help my daughter when, first, she pulled a rib muscle and couldn’t lift her two-year-old and another lengthy one when she gave birth of my grandson – and various and sundry other sundries that I can’t talk about quite yet; I just haven’t had much time to write a column.

But I’m back with a vengeance. The vengeance being what the fine and patient folks at ComicMix will demand if I go this long between columns again. So, as the Prufrock is in the puttin’ words together; “let us go then, you and I…”

…And then they throw their guns at him.

Seriously, how many times did we see that scene play out in the Adventures of Superman TV show with George Reeves? Superman confronts some two-bit thugs – the show’s budget didn’t allow them to spend more than twenty-five cents for extras – the thugs would shoot at Superman, and the bullets would bounce off him harmlessly. Then, after the bad guys emptied their guns at Superman without effect, they’d throw their guns at him believing guns thrown at maybe 50 mph will do Superman harm when projectiles moving at 1,067 feet per second had already bounced like their last rent check.

An oft-repeated scenario which prompted one Ron Hartley to tweet me with a question: under this fact pattern, would the criminals be guilty of a crime? Not some silly low-grade crime like illegally discharging a firearm or an excessive noise violation, are they guilty of a major crime?

To which I answer, it depends. No, not because lawyers are constitutionally incapable of answering a yes or no question “yes” or “no.” I answer it depends, because the answer actually does depend on a few variables.

First, let’s zero in on of what crime might the criminals be guilty? Not murder. Superman didn’t die. But by firing their guns the criminals did commit an act which, if successful, would have resulted in killing Superman. That’s attempted murder. Then there’s some type of assault. What type? As a bar-be-cue chef who’s fond of Shakespeare might say, “Ah, there’s the rub.”

I turn to the Model Penal Code, a document written by the American Law Institute in an effort to update and unify the penal laws throughout the country. Toward that end, the MPC contains model statutes which define crimes and penalties. Since it’s first publication in 1962, more than half the states have modified their criminal codes to incorporate language of the MPC in their penal codes. So the MPC is about as close to a universal criminal law of the land as we’re likely to get.

The MPC defines aggravated assault as causing, or attempting to cause bodily harm to another with a deadly weapon. Note that attempting to cause part, that means the criminal doesn’t have to cause actual injury, the criminal can merely attempt to cause injury with a deadly weapon. So if a criminal shoots at you and misses, you’re lucky. The criminal, not so much. The criminal attempted to cause physical injury with a deadly weapon, and so is guilty of aggravated assault, even though you’re peachier than a peach cobbler washed down with peach schnapps.

To get back to our question, if criminals shoot at Superman and the bullets bounce off him, the criminals still attempted to cause bodily injury or death. So they would be guilty of aggravated assault and attempted murder. Right?

To which I say, not so fast there, Speedy Gonzalez. Like a man who leapt into a brick wall, you’re jumping to contusions.

There’s one additional matter that must be considered. We must also answer the question did the criminals know the bullets would bounce off of Superman when they shot at him?

In the law, an attempt crime – such as the attempted murders or aggravated assaults we’ve been talking about – is what the law considers a specific intent crime. In order to be guilty of an attempt, the criminal must have specifically intended to commit the crime he or she was attempting. In our Superman question, to be guilty of either attempt crime, the criminals must have either intended to kill Superman or to cause him physical harm when they shot at him.

Now we know that killing Superman with bullets is impossible, they bounce off him like raindrops on roses. (Don’t complicate the matter with hypothetical Kryptonite or magic bullets, we’re not talking about the Kennedy assassination.) So killing Superman with bullets is impossible. The law recognizes the possibility of an impossibility defense to attempt crimes. If a criminal is attempting to commit a crime that is impossible, then the criminal could not have intended a specific result, because that result is impossible.

So there you are, if the criminals were attempting the impossible crime of shooting Superman, then they can’t be guilty of attempted murder or aggravated assault. Right?

Of course, not right. Not only can’t the law can’t answer a yes or no questions “yes” or “no,” it can’t even answer it with a definite maybe. It’s got to throw in a few depends along with a perhaps or two to muddy up the maybe.

Let’s look at a classic example law schools use to explain this conundrum. A man – the criminal – shoots another man – the victim. But what if the victim was dead at the time the criminal shot him? Obviously, it’s impossible to kill a man who’s already dead. So the criminal can’t be guilty of murder. But can the criminal be guilty of attempted murder, or does the impossibility defense come into play?

The answer to that question depends on what the criminal knew at the time he shot the dead man. If the criminal knew the man was dead, then the criminal knew killing the victim was impossible. The criminal couldn’t have specifically intended to kill the victim, so the impossibility defense would apply, because the impossibility negated the defendant’s specific intent.

But what if the defendant didn’t know the victim was already dead? What if the criminal believed the victim was alive when he shot and did intend to kill the victim? Then the impossibility defense doesn’t apply.

The law reasons it out like this, if the criminal attempts an impossible crime but doesn’t know it’s impossible, then the defendant would have been successful in the crime, had the facts been as the defendant believed them to be. So, because the defendant intended to cause a specific result, the defendant is still guilty of the attempt, even though the crime attempted turned out to be impossible. If our hypothetical would-be murdered cum corpse abuser didn’t know his intended victim was already dead, he would be guilty of attempted murder.

Or, to get back to the original question, if the crooks shot at Superman knowing the bullets would bounce off of him, they might be guilty of littering for spreading spent bullets all over the place, but they wouldn’t be guilty of attempted murder or aggravated assault. They knew murder and assault was impossible so didn’t specifically intend either. If, on the other hand, the mugs didn’t know the bullets would bounce off Superman and believed the bullets either kill or injure Superman, then they’re not only stupid, they would also be guilty of attempted murder and aggravated assault.
Is it any wonder that I retired from the law? After almost three decades in that morass of maybes and trying to make sense of laws that have more depends in them than a nursing home, my hair turned whiter than snow on the Night King’s butt.

The Law Is A Ass #438: Stu Went Looking For The Old Bailey

TV or, not TV, that is the question. The answer is TV.

I know, I’ve spent the past five columns writing about a TV show and not comic books, and also four out of the five columns before that doing the same. But sometimes these TV shows are just asking for it.

Like “By His Own Verdict,” the November 15, 1963 episode of 77 Sunset Strip. Okay, most of us weren’t even born when this episode first aired. And those of us who were – like, gulp, me – couldn’t shave yet. But the law involved in the story hasn’t changed in the almost fifty-five years since the episode aired. In fact, it’s been the law since 1910, which is before all of us were born. So the topic is still topical, even if it’s not timely.

Joseph Cotton played Arnold Buhler, a criminal defense attorney who was about to retire. His last case was defending Max Dent, a petty criminal played by Nick Adams who was on trial for murder. Right after the not guilty verdict, Max verified that because of the Double Jeopardy Clause of the 5th Amendment, he couldn’t be tried again for the murder. Then he told Arnold that he was guilty; he killed the man.

All of this took place in the teaser, before the opening credits. In my day, people wrote compressed stories that weren’t being padded for trade paperbacks or season-long story arcs, things actually happened. And they happened faster than a frat boy’s Friday night dash to the toilet bowl.

Arnold was upset. He had prided himself on being able to tell whether a prospective client was guilty or innocent and only representing the ones who were innocent. Max not only blemished that record but that also meant Arnold was complicit in a miscarriage of justice. So Arnold hired private investigator Stu Bailey to investigate and try to determine whether Max was truly guilty.

Stu took the case but without the usual aid of the other members of the 77 Sunset Strip team. This was an episode for the 6th season, after Jack Webb took over as producer, decided the show needed to be film noir rather than light-hearted action adventure show, and jettisoned everything that made 77 Sunset Strip 77 Sunset Strip except for Efrem Zimbalist, Jr. and the title. And the title didn’t even make sense any more. Stu’s office wasn’t on the Sunset Strip, it was in the Bradbury Building in downtown Los Angeles.

While Stu was helping his friend from America’s Old Bailey, we viewers were hoping what Stu would really do was find the old Bailey. Alas and alack, that was not to be. Instead of classic 77 Sunset Strip, we got a muddled story that suffered from a loss and a lack of legal accuracy.

Before Stu had finished his investigation, Arnold began, for want of a better word, stalking Max. No, not for want of a better word; there is no better word. Arnold was stalking Max. Following him around. Bothering him. And finally, hinting that he wasn’t glad to see Max, that was a pistol in his pocket. Arnold told Max that while Max couldn’t be tried in a court of law again, he could be tried by Arnold. Arnold would be Max’s judge, jury. And executioner.

Meanwhile, Stu learned Max was as irredeemable as a book of expired Green Stamps. So, just in time for the fourth act, Arnold announced he had reached his final verdict and went looking for Max.

Arnold found Max in the train yards. Max ran. Arnold chased him, usually with his hand in his pocket where the gun was. While Arnold and Max were playing Hide and Seek, Stu and Marty Kline, the DA who prosecuted Max, were looking for Arnold to stop him from killing Max.

As the doctor in the Myanmar epilepsy ward said, that’s when the fit hit the Shan. Max, after pleading with Arnold to stay away to no effect, pulled out his own gun and shot Arnold. As Arnold lay dying in Stu’s arms, he explained that he had set the score right. Arnold goaded Max into killing him. But Arnold didn’t really have a gun, so Max couldn’t claim self-defense. Max had murdered Arnold. Now Max could be prosecuted for murder again, just a different murder.

Marty the DA lamented to Stu that Arnold wouldn’t get the result he had desired. As Arnold had provoked Max, the best they could do was prosecute Max for manslaughter, not murder.

Bob, the former public defender, lamented that self-defense law must not be on the curriculum in California. Because neither Arnold nor Marty had the slightest idea how it worked.

A person may defend himself when he has a reasonable belief that there is an imminent threat of physical harm to his person. In defending himself, the defender may use the same amount of force being used by person against whom the defender is defending himself. Max reasonably believed Arnold was chasing him with a gun and was going to kill him. That’s what those of us who know how self-defense actually works, call deadly force. Because Max reasonably believed Arnold was going to use deadly force, Max was entitled to use deadly force to defend himself against Arnold.

But, wait, Arnold didn’t have a gun, so he wasn’t going to use deadly force against Max. Doesn’t that disqualify Max from asserting self-defense? Do you really think I would have wasted all these column inches, if the answer to that were yes? If the person has a reasonable belief he is in danger of being killed, he may assert self-defense, even if he is, in fact, mistaken in that belief. Like I said, that’s been the law of the land since at least 1910. Probably longer.

In order to goad Max into killing him so that Max could be prosecuted for his murder, Arnold spent a good part of the episode convincing everyone, especially Max, he was going to kill Max. Max had a reasonable belief Arnold intended to kill him. Meaning Max had a right to use deadly force to defend himself, even though Arnold never actually intended to use deadly force. Max didn’t commit murder or even manslaughter. Max didn’t commit any crime at all. Nick Adams might have been guilty of overacting a bit, but Max, he was as innocent as Dr. Richard Kimble, Jason McCord, and all of Perry Mason’s clients. Combined. (Wow, I really have to kick this fixation on old TV shows.)

Arnold, you knew less about the law than a first year student at the worst law school in the country. And because of that, like Narcissus withering away by that pool of water, you died in vain.

The Law Is A Ass #437: Green Arrow Joins The FB Aye-Yi-Yi

No, I didn’t lie.

All I said I was that I finished with the Arrow episode “Docket No. 11-19-41-73.” I never said I was finished with Arrow.

Now, all Arrow had to do for me to be finished with it was get through the last two episodes of the 6th season without any outrageous legal gaffs. Aaaaaand it couldn’t even do that. Hell, the season finale “Life Sentence” couldn’t even get through the “Previously on Arrow” part without an outrageous legal gaff.

You will recall, unless you purged the nonsense of “Docket No. 11-19-41-73” from your mind – and I wouldn’t blame you if you had – that Oliver (The Green Arrow) Queen and Team Arrow were fighting Ricardo Diaz, a crime lord who had taken over Star City. In the “Previously on” section of “Life Sentence” Oliver went to FBI agent Samandra Watson and asked her help to take down Diaz. Watson, who had been in Star City all season investigating whether Oliver Queen was secretly the Green Arrow – so far unsuccessfully – told Ollie, and I quote, “You want my help, I’m going to need you to say the words.” “The words” being an admission that he was the Green Arrow.

Now what Ollie should have answered was, “Listen, lady, how about I tell your frelling boss that instead taking down a frakking international crime lord, like you’re supposed to do, you’re threatening to withhold FBI cooperation unless I admit I’m a criminal?” (Although, I would have substituted in a few of what Mr. Spock called “more colorful metaphors.”) Instead, Ollie admitted he was Green Arrow. And by the end of the episode –

SPOILER ALERT!

– the FBI used Ollie’s confession to get him to agree to a plea bargain. We’ll forgo discussing the details of the plea bargain for the nonce, because we have other nonsense to discuss first. Such as the fact that the FBI was able to use Ollie’s statement against him in the first place.

The Fifth Amendment says that no person can be compelled to be a witness against himself. Courts have interpreted said language to mean the government cannot coerce a confession from a person. Now as I don’t think any of you have any problem accepting that an FBI agent is part of the government, the real question is, did Agent Watson compel Ollie into confessing? What say thee, Messrs. Merriam and Webster?

You say to compel is, “to cause to do or occur by overwhelming pressure.” I think what Agent Watson did fits that definition nicely, so I am unconvinced that Ollie’s confession could have been used against him in a court of law. So unconvinced, in fact that I think even Jean Loring, as bad a lawyer as she showed herself to be in Ollie’s trial, could have won that argument.

Watson’s next step in bringing down Diaz, the one taken after she had stepped all over Ollie’s constitutional rights, was to go to Quentin Lance, the acting mayor of Star City, and have him sign an authorization for the FBI to operate in Star City, because “Diaz’s crimes are local.” Then Diaz spent the rest of the episode trying to extort Mayor Lance into rescinding said authorization. Which makes me wonder, was no one paying attention to what Diaz had been doing all season?

Here are just a few of Diaz’s many crimes. Diaz used Star City’s docks to import illegal narcotics into the city which he then distributed for sale. That means Diaz was involved in crimes that either crossed state or international borders or both. The FBI has jurisdiction to investigate interstate and international crimes. It don’t need no steenkin’ authorization from the local authorities.

Diaz joined The Quadrant, an international criminal organization. Or what the FBI calls transnational organized crime. And you know why the FBI calls it that? Because it has jurisdiction to investigate TOC activities at the local level without authorization.

Still I can’t fault the show for making this mistake. Without the B plot, the episode would have had twenty minutes to fill. And it might have filled it with something even dumber.

Which brings us full circle, back to Ollie’s plea bargain. In return for Ollie admitting he was Green Arrow and pleading guilty to whatever federal offenses he violated by being the Green Arrow, the federal government agreed to grant immunity for all the members of Team Arrow. Then Ollie went off to federal prison.

While Team Arrow all went to state prison. See, the FBI and the federal government could only grant Team Arrow immunity from prosecution for federal crimes. It had no jurisdiction to grant them immunity from prosecution for any state crimes they may have committed.

Remember when John Diggle, Dinah Drake, and Felicity Smoak testified that Ollie wasn’t the Green Arrow? That was perjury. Remember how Ollie was being prosecuted for vigilantism? Well those three could have been prosecuted for all the acts of vigilantism they committed as Spartan, Black Canary, and Overwatch. As could Curtis (Mr. Terrific) Holt and Rene (Wild Dog) Ramirez. Team Arrow could even have been prosecuted as aiders and abettors for all the crimes Ollie was prosecuted for in “Docket No. 11-19-41-73.” The feds couldn’t have granted them immunity for any of those state crimes. So Ollie’s happy ending? Only if he’s happy that Team Arrow’s on the Friends and Family Plan.

Okay, Team Arrow wasn’t actually prosecuted and didn’t actually go to prison. I guess law schools in Star City don’t have any classes on the difference between federal and local jurisdiction. Which is probably fortunate for us. After the nonsense that was “Docket No. 11-19-41-73,” did we really want to suffer through Docket Nos. 11-19-41-74, 75, 76, 77, and 78?

The Law Is A Ass #436: Is Green Arrow Not Guilty By Reason Of Inanity?

I’m sick of it!

I’ve spent the past three weeks writing about the Arrow episode “Docket No. 11-19-41-73” and like Popeye said, “That’s all I can stands, I can’t stands no more!” No matter how long it takes, I’m going to finish with “Docket No. 11-19-41-73” today. Even if I have to write about it from the beginning all the way to the SPOILER WARNING! at the episode’s end.

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The Law Is A Ass

The Law Is A Ass #435: Green Arrow Adds Insult To Perjury

Suppose you were a lawyer. (Don’t worry, this is just a thought experiment. I wouldn’t wish that fate on my worst enemy; only on myself.) Suppose also, that you told your significant other you wouldn’t get married until you had established yourself as a lawyer. Suppose further that you couldn’t establish yourself as a lawyer, because you kept losing all your trials. And, finally, suppose you continued losing trials until your significant other became a super hero and secretly helped you win them. What would you call yourself?

Self-centered would be a good start. Then you could move on to lucky your significant other was so understanding. Calling yourself a bad lawyer goes without saying, but you should probably say it, anyway. Finally, you could call yourself Jean Loring, because that was her character arc in 1961, when she was introduced in the comics.

Jean’s not like that in the comics anymore, but let’s not go there. (Aw, c’mon, if we go there, Amazon gives us a cut! –Ed.) Instead let’s go to the world of the TV series Arrow, where Jean Loring is just a bad lawyer and hasn’t become an insane murderer. Yet.

I’ve spent two columns so far writing about the Arrow episode Docket No. 11-19-41-73.” You know, the one where Oliver (Green Arrow) Queen was on trial for violating Star City’s anti-vigilante law and some assorted homicides and assaults. So far, I’ve only covered the prosecution’s case. Now, to have Jean paraphrase that Get Smart episode when Max was on trial for murder, “For the past two columns, I have sat idly by while my worthy opponent, the prosecuting attorney has stood up here and made a complete jackass out of herself. Now it’s my turn.”

Two state’s witnesses – John Diggle and Dinah Lance, both of whom are secretly costumed heroes who work with Ollie on Team Arrow – lied under oath. They testified that Ollie was not Green Arrow. If Jean were to get information that Ollie was the Green Arrow, she would be ethically required to report their perjury to the court. Moreover, Jean would also not be able to question Ollie or any other witness, if she believed they would lie under oath and testify he wasn’t Green Arrow. That would be suborning perjury.

So the last thing Jean would want to do is ask Ollie, “Are you the Green Arrow?”Naturally, it was the first thing Jean did. Did it before she even put on her first witness. And Ollie told her he was. Because he’s the hero, he wouldn’t lie. He wasn’t under oath yet.

Once Jean knew Ollie was Green Arrow, she suggested their best tactic was jury nullification; that is admit to the jury that Ollie was Green Arrow but argue that the jury should still find him not guilty, because of all the good he had done as the Green Arrow. Basically, you asking the jury to nullify the law by ignoring it and returning a verdict that is contrary to the evidence and the law.

There were a few minor problems with Jean’s jury nullification plan. First, lawyers aren’t supposed to do it. You can’t ask the juries to ignore the law, you’re supposed to ask them to obey it. Second, because jury nullification is not permitted, when judges see lawyers engaging in jury nullification, they put a stop to it. Third, Judge MacGarvey, the judge presiding over Ollie’s trial, was corrupt and under the control of Ricardo Diaz, the crime boss who ruled Star City and who wanted Ollie to be convicted and rot in prison.

Did I say minor problems? A bar serving under-aged drinkers has minor problems. This plan had major problems; more than the 4077th.

Jean was trying a case in front of a judge she suspected had a vested interest in making sure Ollie was convicted and her plan was to hope he’d allow her to assert an improper defense he had every reason – both ethical and financial – to stop. It’s a good thing the 2017 Cleveland Browns didn’t fire their head coach after that 0-16 season, because with those strategy skills, the Browns would have snatched Jean up in a second.

Ollie rejected jury nullification, so Jean went with a more conventional defense. Her first witness was Felicity Smoak; Ollie’s wife and Team Arrow’s resident computer hacker. You know one of those characters who’s constantly typing on a computer and are contractually obligated to say,“Hack into the Pentagon’s computer. They’ve got the most sophisticated security in the—”

“I’m in.”

Felicity testified as a computer expert that a photo of Ollie as the Green Arrow was a fake that had been digitally altered. Which it was. So Felicity was telling the truth. Had Jean stopped there, everything would have been fine.

She…. didn’t stop there.

The code of lawyer ethics has a protocol for lawyers who believe a witness is going to commit perjury. Ethically, the lawyer can’t ask the witness questions and elicit lies. That’s suborning perjury. But ethically, the lawyer can’t refuse to call witnesses the defendant wants called, either. It’s the client’s defense. Defense counsel is the defendant’s advocate and is supposed to do what the client wants. So when the defendant wants the lawyer to call a witness who will commit perjury, the lawyer is supposed to call the witness and then just say something like, “Tell us what happened in your own words,” and let the witness give a narrative account That way, the witness testifies but without the lawyer asking any questions that elicit any lies.

Yes, that solution splits more hairs than Floyd the Barber shortly before the big Mayberry Founder’s Day Parade. But it’s the compromise the profession set up to cover the problem.

Jean, being a bad lawyer, didn’t do that either. She asked Felicity, is Oliver Queen the Green Arrow and Felicity answered no. Jean was pig-headed and did things her way. Which raises the question, was that suborned perjury or stubborn perjury?

Jean compounded the subornation with her next witness, Oliver Queen. She asked him whether he was the Green Arrow knowing he’d say no under oath and he played along by saying no. So far we’ve had four witnesses who committed perjury, a defense attorney who openly suborns perjury, and a prosecutor who didn’t interview any of her witnesses before calling them. Could this trial get any more preposterous? Of course it could.

Right after Ollie’s testimony, the episode had an act break. It needed a hook to keep the audience from changing channels while the network hawked some new drugs whose side effects always seem to be lymphoma, heart failure, kidney infection, death, loss of life, and diarrhea.

So just before that act break, the episode decided to insult our intelligence by having a surprise witness drop into the courtroom through the courtroom’s shattering skylight. A surprise witness wearing a Green Arrow costume.

And what was this surprise witness’s testimony? Wouldn’t you like to know?

Actually, I presume you would like to know. So I’ll tell you. But I’ll tell you next time. Just as the show needed an act-break hook, I need a this-column’s-too-long-and-needs-to-break-until-next-column hook. And as hooks go, a mysterious, skylight-shattering surprise witness works better than a pirate’s prosthetic.