Category: The Law Is A Ass

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.

(more…)

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.

The Law Is A Ass #434: Green Arrow’s Prosecutor Is Trying My Patience

If, as it has been said, a fish rots from the head down, then Team Arrow, from The CW’s Arrow, must be a twenty ton whale shark that’s decomposing from the head, Oliver (Green Arrow) Queen, down through the rotting body that is Green Arrow’s support group, Team Arrow. Why I call them rotten is something we’ll go into as “The Law Is a Ass” continues to suffer the migraine that is the Arrow episode “Docket No. 11-19-41-73.”

Ollie, a super hero in Star City was on trial for violating Star City’s anti-vigilante law and for some homicides and assaults occasioned by the fact that on occasion he shot people with arrows. I started writing about Ollie’s trial last column. I didn’t get too far. I covered the facts that Ollie’s trial was in Judge McGarvey’s courtroom; that McGarvey was under the thumb of Ricardo Diaz, the crime lord who rather openly ruled Star City; that Alexa Van Owen was the prosecutor; and that Jean Loring was defense counsel. I mentioned that Alexa called John Diggle, who was secretly the second-in-command of Team Arrow, and that John, with Ollie’s full knowledge and approval, perjured himself by testifying Ollie was not the Green Arrow.

I pointed out that Alexa wasn’t doing a very good job, because she called witnesses she had not interviewed before trial, so did not know what their testimony would be. I think the second thing they teach you in law school is don’t call a witness about whose testimony you’re uncertain and don’t ask a question whose answer you don’t already know. (The first thing they teach you is how to find the Tuition Office.)

So did Alexa’s job performance improve as the trial went on? Is the Dalai Lama Catholic?

Alexa’s next witness was Dinah Drake, a detective in the Star City Police Department, and also secretly the super hero Black Canary. And guess who didn’t lock down Dinah’s testimony before calling her as a witness?

Did you guess the prosecutor who didn’t know in advance that Dinah was going to perjure herself and testify that Oliver Queen wasn’t Green Arrow. How do I know that Alexa didn’t know what Dinah was going say in advance? Logic and the Rules of Evidence.

If Alexa had interviewed Dinah and learned Dinah was going to say Ollie wasn’t Green Arrow, then Alexa wouldn’t have called her. Not calling a witness whose testimony will contradict your case is so basic that not even Dr. McCoy would have quibbled over the logic. If, on the other hand, Alexa had interviewed Dinah and Dinah had told her Ollie was Green Arrow, then Alexa would have had a prior inconsistent statement from Dinah, which she could have used to impeach Dinah’s testimony.

The Rules of Evidence in most states allow a party in a trial to impeach its own witnesses. When the party calling the witness wants to impeach it’s own witness with a prior inconsistent statement, that party must first show that it was surprised by the testimony and that the testimony has affirmatively damaged its case. Or, put in language that even Cousin Vinny could understand, “Hey, Judge, I didn’t know da witness wuz gonna say dat, and it hoits my case.”

If Alexa had a prior statement from Dinah saying Ollie was Green Arrow, she could have argued to Judge McGarvey that Dinah’s testimony both surprised her and hurt her case. After McGarvey agreed — and even this bleeding-heart former defense attorney, agrees Alexa could show surprise and affirmative damage – Alexa could have impeached Dinah with the prior inconsistent statement. That Alexa either didn’t either know what Dinah was going to say or failed to impeach Dinah only shows that she didn’t interview Dinah before trial.

Oh, Alexa did impeach Dinah, but her method of impeachment was just as incompetent as her tactic of not interviewing her witnesses before trial. Alexa asked Dinah, over objection, whether she had murdered a drug-dealer named Sean Sonas. (Dinah had; trust me. I’ve seen all the Arrow episodes so I saw her do it.) Dinah declined to answer on 5th Amendment grounds.

Courts have held it’s improper to call a witness you know will invoke his or her 5th Amendment rights, because it is an attempt to build one’s case out of what the jury will infer from the witness’s invocation of the 5th Amendment. It’s just as improper to impeach a witness by asking a question you know will cause the witness to invoke the 5th Amendment. The jury will infer the witness must have committed the crime that the witness refuses to testify about and disregard the testimony of a witness it infers to be a criminal.

When Alexa asked Dinah whether Dinah murdered Sonas, she violated this principle. Not only should she never have asked the question, Judge McGarvey should have sustained the objection and never allowed the question to be asked. But, like I said earlier, McGarvey was a Black Friday judge; bought and paid for at bargain basement prices.

Alexa’s next witness was Rene Ramirez, secretly the Team Arrow member called Wild Dog. Rene originally planned to follow Team Arrow’s putrescent perjury party line and say Ollie wasn’t Green Arrow. (Meaning, once again, Alexa probably didn’t interview him before trial.) Rene changed his mind when Diaz threatened to harm Rene’s daughter, if he didn’t testify “properly.”

So for the first – and only – time in her trial, Alexa had a witness who did testify that Oliver Queen was Green Arrow. Then Alexa got to the heart of the various homicide and assault charges leveled against Ollie. She asked Rene if he ever saw Green Arrow kill or maim people. Rene testified that he had, but there were too many occurrences for him to estimate how many people it was.

With that triumphant testimony, Alexa rested her case.

And promptly lost every homicide and assault count leveled against Ollie. Or should have, anyway. This is a TV trial, remember, so we can’t expect it actually to follow such things as burden of proof or proof beyond a reasonable doubt. We can hope, but we shouldn’t really expect it.

See, in a trial for homicide and assault, it isn’t enough for a witness to testify that he saw the defendant kill or maim lots of people. The witness has to testify that he saw the defendant kill or maim the specific victims named in the indictments. Or, if not that, how about the testimony of the medical examiner that he pulled green arrows out of the corpses of people Oliver Queen was charged with killing? Something, anything, to prove that Ollie killed the people named in the indictment as opposed to a general murder of murder victims.

Had a competent defense counsel moved for a verdict of acquittal on the homicide and assault counts because the prosecution failed to offer any evidence that the defendant actually killed or assaulted the named victims, it would have been granted. Naturally Jean Loring, didn’t even go through the motions by making the motion. After all, where would the drama in the episode be if a prosecutor as inept as Alexa Van Owen were facing a competent defense attorney?

So after spending a couple of weeks describing what a lousy prosecutor Alexa Van Owen was, is it now time for me to write about what a lousy defense attorney Jean Loring was?

No.

Next time will be.

Meaning this column has run out of what the newspaper game calls column inches. We’ll have to talk about what a lousy attorney Jean Loring was next column. And probably the column after that. There was so much barristerly balderdash in “Docket No. 11-19-41-73” that I’m afraid we’re in for a long haul down the halls of justice.

The Law Is A Ass #433: Green Arrow Wants Me To Trial Little Tenderness

The Law Is A Ass #433: Green Arrow Wants Me To Trial Little Tenderness

I think I’m losing all respect for Oliver (The Green Arrow) Queen. And considering when the TV series Arrow started he was a stone killer except he killed people not stones, I didn’t have very much respect for him to begin with.

We’re talking about the Arrow episode “Docket No. 11-19-41-73.” Keep those numbers handy; we’ll be talking about them for a while. And, no, I wouldn’t advise playing them in your local lottery. Why should those numbers be winners? Nothing else about this episode was.

Ricardo Diaz, the crime lord who had taken control of Star City earlier in the season felt it wasn’t enough that he used the corrupt politicians under his control to impeach Oliver as the Mayor of Star City, he also had his underlings prosecute Oliver. Diaz wanted Oliver to spend the rest of his life in prison, while Ollie watched Diaz ravage Star City. Diaz even brought in a special prosecutor, Alexa Van Owen with her 99% conviction rate, to prosecute Ollie. And that still wasn’t the worst thing Diaz did. Considering Kirk Acevedo, the actor playing Diaz, never saw a piece of scenery in the Arrow sets that he didn’t treat as a blue plate special, the worst thing Diaz did was emote.

Now you may be wondering what crimes Star City was prosecuting Ollie for in the case and episode called “Docket No. 11-19-41-73.” Wonder no more, I’m here to tell you.

That is, I would be here to tell you, if the episode had bothered telling us. I know Ollie was being prosecuted for violating Star City’s anti-vigilante ordinance by being The Green Arrow. I know that, because it’s the one count in Ollie’s indictment the episode did bother to mention.

Actually, there were probably multiple counts of illegal vigilantism. Star City Council enacted the anti-vigilante ordinance early in Season 6, so any time Ollie went out as the Green Arrow after that – which, considering the show is called Arrow, was every episode – that was a new, and separately-indictable violation of the ordinance. But there still had to be more.

Laws passed by city councils, as opposed to laws enacted by state legislatures, are misdemeanors not felonies. I’ve mentioned this before and I wish TV people would remember it. Misdemeanors don’t normally carry sentences in excess of one year. Felonies do. Prosecutor Van Owen offered Ollie a plea bargain with a fifteen-year agreed sentence. So, Ollie had to be charged with at least one major felony for an agreed sentence of fifteen years to be considered a bargain.

But what felony? The show didn’t tell us specifically, but it did give us enough information to let me make a law-school-educated guess. I’m guessing there were multiple indictments for the many murders and assaults with a deadly weapon that Green Arrow committed by shooting actual arrows into actual people over the course of the show.

There had to be some murder indictments somewhere in mix, because Ms. Van Owen’s offered plea bargain was to a single count of First Degree Manslaughter. Courts have ruled that a person cannot plead guilty to a crime, if it is not a lesser included offense to one of the crimes charged in the indictment. Pleading to crimes which are not lesser included offenses of one of the indicted offenses violates the defendant’s constitutional right to receive notice.

Manslaughter is not a lesser included offense of some “Don’t Be a Vigilante” Ordinance. First of all, manslaughter is a felony and, as I said, the anti-vigilante ordinance would be a misdemeanor. So manslaughter is a higher-degree crime than the anti-vigilante ordinance. It can’t be a lesser included offense.

Moreover, manslaughter wouldn’t contain any elements in common with anti-vigilante. One can be a vigilante without killing people. Hell, as brutal as he is, Batman does it all the time. So manslaughter also isn’t an included offense of anti-vigilante laws. On the other hand, manslaughter is a crime of lesser degree than murder and does contain common elements with murder. So if Ollie was offered a plea to manslaughter, he has to have been indicted for one, or more, murder.

After Ollie turned down the plea offer, the trial started. So did my note taking. Two legal pads and several Bics later, I was ready to start writing about the trial. Lucky me.

As her first witness, prosecutor Alexa Van Owen called Dr. Elisa Schwartz. Green Arrow had once brought fellow super hero Black Canary into Dr. Schwartz’s hospital with a knife wound and Dr. Schwartz was the attending physician. Alexa asked Dr. Schwartz that, as she was close enough to Green Arrow to determine his identity, whose face did she see? Dr. Schwartz answered that she was too busy treating her patient and didn’t pay enough attention to Green Arrow to determine his true identity.

Uh, Alexa, didn’t you vet your witness so that you’d know the answer to that all-important question before calling her? No. Okay. Still, a mistake that fundamental makes me doubt that 99% conviction rate. Seriously, on L.A. Law Susan Dey also played a prosecutor named Van Owen who would have done a better job. Hell, Susan Dey’s other big role, Laurie Partridge, would have done a better job.

Alexa’s next witness was John Diggle, Oliver Queen’s personal bodyguard, and also secretly Spartan, the second-in-command of Team Arrow. She asked John if Oliver Queen were the Green Arrow. He said no. And as the head of Oliver Queen’s security, John would know whether Ollie was Green Arrow. Again I’m forced to ask, did Alexa not vet her witnesses before calling them so that she’d know how he would answer her questions?

Okay, I admit that John perjured himself (with the full knowledge and approval of Ollie) because Ollie was the Green Arrow and John knew that. But Alexa didn’t know that. All she knew was that she posed a question to John and she didn’t know that he wasn’t going to give her the answer she was hoping he’d give her.

But Alexa impeached John’s damaging testimony. She pointed out all the injuries he had incurred in his years as Ollie’s body guard, so he couldn’t have been that good a security officer. Right, a body guard got injured protecting his charge; aren’t they supposed to do that? So John was conscientious in his job, that certainly proves he’s an unreliable witness the jury should ignore.

Did I say Laurie Partridge could have done a better job than Alexa? Hell, the Partridge Family dog Simone could have done a better job. At least he knows about vetting.

I’d tell you who Alexa called as her next witness, but this column is already pretty long and, when it comes to covering old Docket No. 11-19-41-73, I’m like someone who took sandpaper to his tablet computer. I’ve only scratched the Surface. (I’m not sure I’m even up to the third one yet.)

So, I’ll follow the time-honored tradition that all TV courts use when they need to go to commercial break. This column is in recess and will reconvene next week.

The Law Is A Ass #432: Things Aren’t Impeachy Keen with Green Arrow

A wise man once said “Those who do not learn from history are doomed to repeat it. Usually in summer school.” No, it wasn’t George Santayana. It was me; I lied about the wise part. But whoever said it, the sentiment is true, so it would behoove Oliver Queen not to start planning that Disneyland vacation just yet. He has some summer schooling in his future.

First, I’m going to SPOILER WARNING you that I’m about to give away much of the plots of the Arrow episodes “Brothers in Arms” and “Fundamentals.” If you haven’t seen them, you might want to stop reading and go to Disneyland in Ollie’s stead.

Okay, now I’m about give you some needed background information by blitzing through about two-thirds of a season’s worth of Arrow episodes in just one paragraph. Pay attention.

Oliver Queen, who is both the Green Arrow and the mayor of Star City, is under investigation by both the FBI and Star City, for being the Green Arrow; which violates Star City’s anti-vigilante ordnance. Meanwhile, crime boss Ricardo Diaz, has taken control of Star City. So much so that in the Arrow episode, “Brothers in Arms,” Ollie could only find seven officers in the entire Star City Police Department who weren’t on the Diaz payroll. And in another episode which I’ll get to presently, police officers actually address Diaz as “Boss” right on a public street. That’s a level of corruption that would make Gotham City take notice, and Tammany Hall take notes.

Having brought you up to speed speedily, we go back to “Brothers in Arms.” Dinah Drake and the other six police officers who weren’t under Diaz’s thumb got intel that Diaz’s right-hand man, Anatoly Knyazev, was about to make a drug drop. They conducted surveillance and watched Anatoly make the delivery. So they arrested him on the scene and with the drugs.

Only to have Star City District Attorney Sam Armand immediately kick the case. Ostensibly he dismissed it because the police didn’t have a warrant when they arrested Anatoly. In reality, Armand was one of the many Star City officials on Diaz’s payroll. Like I said, Diaz’s corruption was more wide-spread than chlamydia in a whore house.

Now, I recognize that Armand would want to get the case against his boss’s right hand man dismissed. Still, it’s doubtful that he would have done so in such an obvious manner.

Dinah might not have had a warrant, but she did have reliable intel that Anatoly was making a drug delivery. They watched Anatoly go to the spot where the delivery was scheduled to take place and saw Anatoly give a briefcase to the man who met him at the delivery site. Anatoly’s actions corroborated Dinah’s reliable intel. The combination of observations and intel would have given Dinah probable cause to believe she had seen Anatoly commit a crime. When the police see a crime being committed, they can make an immediate arrest without having to obtain an arrest warrant first. Courts don’t actually require the police to tell the perp, “Wait right here while I go and get a warrant so I can come back and arrest you.”

Most district attorneys wouldn’t dismiss this case because of a lack of a warrant. They’d let it go before a judge who could hear the evidence and decide whether the arresting officer had sufficient probable cause to make a warrantless arrest.

Armand should have let one of Diaz’s corrupt judges dismiss the case. Or had one of the other corrupt cops steal the evidence, which would have necessitated the charges being dropped. Then no one would have suspected him. Instead, he chose to act in a way that was sure to make mayor Oliver Queen suspect that he was on the take and fire him.
After Ollie verified Armand was on the take, Ollie fired him. Along with police captain Kimberly Hill, who was also on the take. Like I said earlier, the corruption in Star City was so wide-spread, you could plot its growth on graft paper.

Which only created new problems for Ollie. When you’re the subject of criminal investigations, firing some civil servants might cause them to go to the TV news, claim you fired them to impede their investigation, and accuse you of obstruction of justice.

Can you guess what Armand and Hill did for the cliffhanger of “Brothers in Arms?”

In the next episode of Arrow, “Fundamentals,” the Star City City Council held a hearing to determine whether it should impeach Mayor Queen. At the end of the episode, the Council voted to impeach Oliver. At which point, Oliver, told Deputy Mayor Quentin Lance that he’d been impeached, so Quentin was the mayor now.

Which isn’t the way it works. As anyone who to learn from the history of Andrew Johnson and Bill Clinton would know.

An impeachment is an indictment, not a conviction. Articles of impeachment are the formal charges brought against the official. They lay out what high crimes or misdemeanors the official has committed to warrant said official being impeached, but they don’t remove the official from office.

When the House of Representatives voted to impeach Andrew Johnson or Bill Clinton, neither president was removed from office. Both continued to serve as president, while the Senate conducted a trial on the House’s articles of impeachment. If either man had been convicted in the trial, then he would have been removed from office. History tells us that the Senate acquitted both presidents and both served out their full terms. Without any interruption in their being President.

So, even though Star City City Council voted to impeach Mayor Queen, he wouldn’t have been removed from office or turned power over to Deputy Mayor Lance. He would have continued as mayor while some other body conducted a trial. He would only have been removed from office if he was convicted of those articles of impeachment. At some later time.

Speaking of later times, I know that earlier I said I’d write about yet another episode of Arrow presently. Well, to pervert an old saying, there’s no time in the presently. I’ll have to write about that episode in future columns. But they’ll be goodies. Remember all the fun we had dealing with the Arrowverse episode about the trial of The Flash? Next time it’s the trial of Green Arrow.

The Law Is A Ass #431: Spider-Man’s Crime Fighting Needs Improv-Ment

Spider-Man. Spider-Man. Who, according to the song, does whatever a spider can. However, when it comes to fighting crime, sometimes he doesn’t do it as well as a spider would.

The Amazing Spider-Man Annual Vol 3, No. 1 had three stories in it. We’ll take what was behind Door Number 3, a little deal of the day called “Whose Crime Is It, Anyway?” written by Wayne Brady and Jonathan Mangum. Because that was the story that gave the law a zonk.

In said story, Spider-Man went to a nighttime comedy improv workshop being taught by the aforementioned regulars on Whose Line Is It, Anyway? because Spidey thought he needed a refresher to hone his one-liner skills. He was Hulked out by his puny banter and wanted to be more quip on the draw. Spidey’s lesson didn’t last long. A page or so into the improving, he heard a burglar alarm and knew it was time to put his newly honed skills to practical use.

Okay, I’ll need a place that has money and a number between one and five. Ah, I heard “bank” and “three.”

Spidey went to the bank next door and found three men planning to loot the safety deposit boxes from the small safe, because the big safe would take too long. Spider-Man then crashed their party. Literally. He jumped through the bank’s front window. Spidey suggested the crooks work together, listen to each other, and act as a team. They agreed and decided two of them would crack the safe while the third emptied the teller drawers

A little later, the crooks all had sacks full of money and were walking out the door thanking Spider-Man for making it the easiest job they’ve ever done. Meanwhile, even though the alarm had been going off for some time now, the police still hadn’t arrived. Apparently this bank wasn’t close to any donut shops.

Undaunted, Spidey webbed the door so the crooks couldn’t get out. The three crooks rushed him. In a straight line. So that when Spidey punched the first crook, he fell back and hit the second crook who, in turn, fell back and hit the third crook. Spidey subdued the three crooks with one blow, not as good as a brave little tailor, but necessary when you’re appearing in a short story. Then Spidey told the crooks that he had waited until after they actually took some money, so they could be arrested for more than attempted robbery.

Hey, Spidey, maybe you should have paid better attention to that improv class. The purpose of, “Yes and,” is that you’re supposed to agree with what the person before you said then build on that to make things go smoothly. You don’t say, “Yes and how can I make things worse?” Because worse is what your little escapade made things.

And I don’t mean worse for the crooks. You’re supposed to make things worse for them. It used to be right there in the Comics Code. No, I meant worse for the poor victims.

Look at what Spidey did. Or, in case you don’t happen to have the comic in front of you so you can’t look, let me tell you what he did. First, he crashed through the bank’s window instead of coming through whatever entrance the crooks used, because that’s what all banks need; a gaping hole right in the front of their secure building. Then he let the crooks take money out of the safety deposit boxes and teller drawers, meaning that the tellers will have to balance all their cash drawers again. Then all those safety deposit boxes. And that’s after they pick up all the stolen money and sort it out. He put them through all this just so that the crooks would actually take some money and could be charged with more than just attempted robbery? Good plan! Considering that when the crooks took the money they couldn’t be charged with robbery – actual or attempted – at all.

According to the section 160.00 of the New York state penal code (I write in my best Jack Webb monotone) robbery in the third degree happens when, “in the course of committing a larceny, [the perpetrator] uses or threatens the immediate use of physical force upon another person for the purpose of… Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking.” When the crooks took the money they hadn’t used, or threatened the use of, any physical force on anyone. So they weren’t robbers.

What they were was burglars. Because what they did violated section 140.20 of that same penal code by trespassing in a building in order to commit a crime there in. And that’s burglary of the third degree. Moreover, both robbery and burglary of the third degree are Class D felonies in New York. So Spidey could have gotten them convicted of the exact same class of felony without having to wait until they actually touched the money. Which would have made everybody – Spidey and the bank employees – happy. Okay, it wouldn’t have made the crooks happy. But, I repeat, Comics Code.

Now, when the crooks rushed at Spidey, they were threatening the use of physical harm so were guilty of robbery in the third degree. In fact, they were guilty of the Class C felony robbery in the second degree, because each crook was aided another person who was present during the robbery. But Spidey could still have achieved this result without letting them actually touch the money.

These crooks were stupid enough to rush Spidey unarmed. Okay they had arms, how else could they have carried those bags of money he let them get their hands on? But they didn’t have weapons. And they still rushed Spider-Man. In a straight line, no less, so he could punch one and turn them into human dominoes. I’m betting they were also dumb enough to have rushed Spidey if he told them he was going to stop them before they touched the money.

Spidey could have gotten the crooks to commit robbery of the second, robbery of the third degree, and burglary of the third degree without making the poor, underpaid tellers lives more difficult. But he didn’t. I guess Spidey was still in his improv class. And the game he was playing was “World’s Worst.”

The Law Is A Ass #430: Flash’s DA Should Have Said, “Well, Recuse Me!”

“Just when I thought I was out…they pull me back in.”

Oh great. It’s not bad enough I’m in a Godfather movie, so I probably have the life expectancy of a mayfly in a cancer ward, I’m in The Godfather: Part III. Still, even The Godfather: Part III would be preferable to where I’m actually going. You guessed it; “The Trial of The Flash.

Just in case your family took you out of school to go down to Disney World so you don’t know what we’ve been doing for the past three weeks, we’re talking about the episode of The Flash in which The Flash’s secret identity of Barry Allen was on trial for murdering Clifford DeVoe. Barry didn’t kill Devoe. He was framed.

I thought I had covered just about everything this episode had to offer. But the episode contradicted me. It was large, it contained multitudes. There are a couple of aspects I haven’t touched on. Until now. They both have to do with Cecille Horton, Barry’s defense attorney.

When Cecille was introduced, she called herself the district attorney of Central City. And that’s what her entry in the Arrowverse Wiki says she is, the Central City District Attorney. But every time Cecille ever did something, her every action made herself seem like a district attorney for the county, not Central City. I realize the show could have been indulging in shorthand. The show might not have wanted to specify the name of the county that contains Central City. So rather than say Cecille was the District Attorney of Yada Yada County, it just said she was the Central City District Attorney. But the show kept having her do things more consistent with the County District Attorney, not the Central City District Attorney.

There is a huge difference between a city district attorney and a county district attorney. So let me elucidate on the elusive state of DA differences.

Most states have cities and counties. (Two states – Alaska and Louisiana, parish the thought – don’t have counties.) The Flash takes place in Missouri, so said the episode “The Man in the Yellow Suit,” and Missouri has counties.

Something else most states have is city courts and county courts. Missouri has both types of courts. Missouri calls its county courts circuit courts, but what’s in a name other than four letters? The function of Missouri’s circuit courts, like the function of all county courts, is to be the court of original jurisdiction for the county. City courts, on the other hand, are the courts of original jurisdiction for the city in which they sit. Both city courts and county courts handle civil and criminal matters. We’re concerned with criminal matters, so we’ll leave the civil matters alone. Just as well, people tell me I’m not very good at being civil anyway.

City courts handle criminal violations of the city’s ordinances . These crimes are misdemeanors; less serious crimes such as simple theft, simple assault, or simple simonizing. County courts are responsible for prosecuting felonies. You know the big crimes like murder, kidnapping, or arson; the kind that are featured in TV shows, because no one wants to a watch an hour of someone on trial for jaywalking.

Cities have district attorney offices. So do counties. The city’s DA office prosecutes people charged with violating city ordinances in a city court. The county DA’s office would be responsible for prosecuting felonies, which are violations of state law, not city ordinances.

If Cecille were the Central City District Attorney, she would be a municipal prosecutor and her office would only handle misdemeanors. However, Cecille frequently involved herself in felony matters which would be beyond the scope of a city DA. So I think Cecille was supposed to be the County DA, but the show referred to her as the Central City DA because it didn’t have to name the county. Moreover, the show said Cecille was the district attorney, not a district attorney. That would mean Cecille wasn’t an assistant district attorney – like Michael Moriarty’s character on Law & Order – but the county DA – like Stephen Hill’s character on Law & Order.

And therein lies one of those multitudes I was talking about. Make Cecille the county DA, not an assistant DA, and neither she nor her office could have prosecuted Barry Allen.

See, in addition to being the county DA, Cecille was also the fiancée of Detective Joe West of the Central City Police Department. Yes, the same Joe West who happened to be both Barry Allen’s foster father and Barry’s current father-in-law. That means Cecille was about become Barry’s mother-in-law and his foster step-mother. I’m not sure even Albert Einstein could solve that particular theory of relativity, but what it boils down to is that Cecille is part of Barry’s family.

Cecille would have a conflict of interests and wouldn’t be able to prosecute a family member. If Cecille were just an assistant district attorney, her office could have Chinese walled Cecille so that she was insulated and never had any contact or dealings with the ADAs handling Barry’s case. But if Cecille is the county district attorney not an ADA – and she’s billed as the district attorney not a district attorney – then she’d be responsible for overseeing everyone’s work in the office and that wall wouldn’t be of China so much as it would of Jericho. If Cecille is the county DA, her whole office would have had to recuse itself from Barry’s case and the Attorney General would have appointed a special prosecutor to handle it.

Moreover, if Cecille were the county district attorney, there is simply no way she would be able to take a leave of absence from the DA’s office to handle Barry’s defense. She would have had privileged work product information of how the case against Barry was prepared. Barry may have the constitutional right to the attorney of his choice, but that choice would be trumped by the Code of Professional Responsibility. Not even the attorney of choice may represent someone if that representation is an ethical violation.

However, Cecille’s office wasn’t removed and Cecille was able to represent Barry. So maybe Cecille is just the Central City district attorney and not the county district attorney. And maybe I don’t know what kind of district attorney Cecille is, city or county. However, even if I don’t know what kind of DA Cecille is, as I’ve said before, I know what kind of lawyer she is.

A bad one.