Category: The Law Is A Ass

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.

The Law Is A Ass #429: If At Flash You Don’t Succeed, Try, Trial Again

Where do I begin? Oh, right, I began two columns ago, because this is column three in my series discussing the “The Trial of The Flash” episode from the The Flash TV show. (And there’s a sentence that’ll drive proofreaders crazy.)

Okay, I’ll actually begin with a SPOILER WARNING. If you’re not caught up on The Flash, I’m about to reveal a couple of episodes worth of endings. Now, with the warning out of the way, like a college professor dressing for his twenty-fifth graduation ceremony, I have to recap.

Barry (The Flash) Allen was on trial for murdering Clifford DeVoe. In reality, DeVoe, a super genius whose hyper brain was literally sapping the vitality from his own body, transferred his consciousness into the body of another man. Then he put his lifeless body in Barry Allen’s apartment and framed Barry Allen for murder.

The trial followed the Constitutional principle of a speedy trial, it barely took up half of the forty-two minutes a one-hour TV episode lasts when you use your DVR to skip the commercials. My writing about the trial has taken a bit longer. Okay, more like a terabit longer. But take heart, the trial’s reached the closing arguments and instructions to the jury stage.

Which I’m not going to write about.

Not because closing arguments and jury instructions are boring – although they are – but because the episode didn’t actually show either to us. About three sentences into defense counsel Cecille Horton‘s one-law-degree-short-of-being-ept closing argument, Barry received a Troubalert that the villain du semaine was wreaking havoc in Central City. Barry told the judge there was an emergency and he was needed. Cecille added that nothing required the defendant to be present during closing arguments and the judge let Barry leave the trial. You might wonder whether the defendant can actually leave a trial while it’s still going on. The answer is yes.

Defendants don’t normally leave their trials, because that tends to make juries think the defendants don’t care about the trial, so why should the juries care about the defendant? But they can leave while trials are going on. And case law says that if a defendant voluntarily absents him or herself from the trial, it can proceed without the defendant.

So Barry left the trial to help Team Flash. Not to mention helping us. As I said earlier, we didn’t have to watch the trial’s boring parts.

It took Flash less than one act to defeat the baddie. It took the same amount of time for the lawyers to finish closing arguments, the judge to deliver the jury instructions, and the jury to reach its verdict. Right before the act break, the jury found Barry guilty.

Some people have complained about the verdict coming in that fast. But it happens. It’s what we call in the legal game a flash verdict— no pun intended, that’s really what they’re called. When juries retire to the deliberating room usually the first thing they do is elect a foreperson. Then lots of juries will take a vote on the verdict just to see where they all stand. If that initial vote comes back with a unanimous guilty verdict, the jury deliberations could be over as quickly as the episode indicated. So I have no problem with how fast the verdict came in. I do have a problem with the jury instructions, however. Those things are never fast.

After the verdict, the prosecutor delivered a speech that he hoped Barry would receive a life sentence given the brutal nature of the crime. Which was grandstanding on his part. Barry had been convicted of murder in the first degree. In Missouri, the mandatory sentence for murder in the first degree is life without the possibility of parole.

Before the judge delivered Barry’s sentence, he delivered a speech about how in all his years on the bench he had never seen a defendant who was more unmoved or had such a lack of regard for human life. You know, the usual shtick.

Also grandstanding, but I can forgive the judge his grandstanding. Judges lay it on thick at sentencing, so they can show the voters they’re tough on crime. It tends to get them reelected. When prosecutors lay it on thick and show that they don’t even know what their state’s mandatory sentence laws are, they tend not to be reelected.

Which brings us to the end of “The Trial of The Flash,” but not our column. See while Barry was serving his sentence in Iron Heights Prison, Warden Wolfe discovered that Barry was The Flash. So three episodes later, in “True Colors,” Warden Wolfe made a deal to sell Barry and some of the other super villains in Iron Heights to Amunet Black, a super villain who trafficked in the super-powered people black market. When Barry and the other super villains learned about Wolfe’s plan, they attempted an escape during the course of which all the super villains and Warden Wolfe died. Team Flash told Barry that he should finish the escape plan so that he could be free and help Team Flash defeat Clifford DeVoe. Barry refused.

He was willing to help the others escape to keep Wolfe from selling them on the black market, but that was no longer a possibility. Barry was going to stay in prison until Team Flash could find a way to get him out of prison legally. That would be the only way he could ever feel truly free.

And later that episode, Team Flash did figure out a way to get Barry out of prison. The Elongated Man used his stretching powers to make himself look like Clifford DeVoe and appeared in court. “DeVoe” told the judge that he hadn’t died, he had been in some weird state of unconsciousness. The judge didn’t think to ask any questions such as how DeVoe survived the autopsy which would certainly have been required on his body before Barry could ever have been brought to trial, and ordered Barry released.

So that was Team Flash’s plan to get Barry out prison legally? Committing a fraud upon the court? If that’s the kind of “legal” method they were willing to use, why didn’t they just bribe the jury during Barry’s trial? It would have saved them a lot of time and us a lot of grief.

The Law Is A Ass #428: Trial And Era With The Flash

It’s just like riding a bike. Once you’ve done it, doing it again is easy.

And what we’ve done, and are doing again, is “The Trial of The Flash.” Sorry, that should be the trial of Barry Allen as it wasn’t The Flash who was on trial for murder in the January 16th episode of The Flash, it was his secret identity Barry Allen. I’d think the old habits formed in columns of another era were dying hard but even the TV show called this episode “The Trial of The Flash.”

Anyway, The Flash – err, Barry Allen – was on trial for killing Reverse-Flash – I mean Clifford DeVoe; damn that muscle memory. Barry didn’t kill DeVoe. DeVoe, the super genius dubbed The Thinker, had transferred his mind into the body of a man named Dominic Lanse, because DeVoe’s own body was paralyzed and atrophying. DeVoe took his lifeless shell of a former body to Barry Allen’s apartment, stabbed it with one of Barry’s knives, and arranged for the police to find Barry standing over the body. Presto, Barry was framed better than Dogs Playing Poker.

Barry’s defense attorney Cecille Horton decided that the best way to beat the murder rap was to reveal to the world that Barry was The Flash…

Damn it! You’d think that after thirty years my fingers wouldn’t automatically write about the events of that old “The Trial of The Flash.”

Oh wait. Cecille wanted to do that in the current “The Trial of The Flash,” too. She decided the only way for Barry to beat the case would be for him to testify, which would require revealing his secret identity. No logical arguments such as, Barry is an expert forensic scientist for the police, so would he plan a crime so clumsy that all the evidence pointed to him. Or, if Barry had actually knifed DeVoe to death, why wasn’t there any blood on him when the police found him? Nope, nothing like that could be tried. Or tried. Only revealing Barry’s secret identity so he could testify could save him.

Problem was, Barry didn’t want to reveal his secret identity. He said if his Rogue’s Gallery learned his secret identity then all his family and friends would be in danger of reprisal from said Rogues.

Uh, Barry, you and your father-in-law, Joe West, are police officers who have openly worked with Team Flash in the past. I think you and Joe are already targets. Cecille, who’s engaged to Joe, used to be a prosecutor. So we can kind of reprise the reprisal for her. And your wife, Iris West-Allen, is a crime reporter who probably already has an enemies list as formidable as Richard Nixon’s. As for your other friends – the super heroes Vibe, Killer Frost, and Elongated Man, the Rogues already hate them, too. But they can kind of take care of themselves.

The point I’m making is that your family and friends already have targets on them. So not revealing your secret identity isn’t really protecting them all that much.

Moreover, at this point who in Central City doesn’t know the Flash’s secret identity? He and his team routinely use their street names while in costume. Their attitude toward preserving Flash’s identity is about as cavalier as a Cleveland sporting goods store in January. And even if there are some members of the general public who don’t know Flash’s identity; which of his Rogue’s Gallery doesn’t know it? Girder knows it. Pied Piper knows it. As does Plastique, Captain Cold, Reverse-Flash, Zoom, Weather Wizard, Savitar, Heat Wave, Abra Kadabra, Clifford DeVoe, and Gorilla Grodd. Did I leave any out? Probably.

So, again, Barry not revealing his secret identity? Not so helpful in the whole protecting-your-family-and-friends department.

The prosecution called Marlize DeVoe, the “widow” of Clifford DeVoe, as a witness. When Cecille cross-examined her, she used some photos that Joe Allen and Ralph (The Elongated Man) Dibny took of her in lip lock with Dominic Lanse. (Remember, her husband’s mind was in Dominic’s body, so she was actually kissing her husband.) Cecille suggested that maybe she and her husband weren’t so much in love and she and her new lover were tired of waiting for her husband to die so killed him.

Which is one of the worst ways to introduce that evidence. Why? Because it gave Marlize an immediate chance to explain the pictures. She said her husband was dying of ALS and she met Dominic, whose father died of the same disease, in an ALS support group. Her husband could see their mutual attraction so he encouraged Marlize to go to Dominic for the things he could no longer give her. It won the jury back to Marlize’s side.

The better way to introduce the evidence is spring it in the defense case-in-chief. Sure Marlize could try to explain it away. But she wouldn’t be able to do that until the state’s rebuttal case which would be hours – or days – later. Any bad feelings the jury might have gotten from the picture would sit in them for those hours — or days – and take root. So maybe, the jury wouldn’t buy into Marlize’s explanation quite so easily. That way, the closing argument of “We only have her word that she had her husband’s blessing. Maybe she and Dominic were tired of waiting for Clifford DeVoe to die and decided to do something about it,” would have had more effect.

And, for that matter, did anyone think to check out Marlize’s story? Did Dominic’s father really die of ALS? We know they didn’t meet in a support group, so why not check into his father’s death. If Dominic’s father did die of ALS – and what are the odds of that? – nothing’s changed. But if he didn’t, then Marlize committed perjury and the jury would have discounted most everything she said. To answer my own question, no one bothered to check Marlize’s story. So there’s some good criminal defense work.

And…

Yes, “and.” It’s happened again. I’ve run out of column before running out of material. Only this time it isn’t muscle memory causing me to re-type something I wrote back in 1983. This time it’s happening now. Seems that no matter what century I’m in, I’m fated to write endlessly about “The Trial of The Flash.”

The Law Is A Ass #427: The Flash Sings Happy Trials To You

So what do you do when you’re feeling nostalgic? If you’re me – and luckily for me, I am me – you write about The Trial of the Flash. No, not the one from 1983, the one from last month. On the TV series The Flash.

So let’s get you up to speed; pun intended. This season Team Flash is fighting Clifford DeVoe, AKA The Thinker, a genius who’s one coyote away from being a super genius and orchestrating some sort of season-long master plan to hector The Flash.

And here’s where we start getting into SPOILER ALERT! territory. I’m about to reveal important plot details from several episodes of The Flash. Why? It’s in my job description. Right after wise ass. If you’re one of those people who don’t watch a show until the DVD set comes out or you binge it on a streaming service, so aren’t current with the current season of The Flash, you might want to stop reading now. The column will be in the archives so you can read it after you’re all caught up. And that way you come here twice so I get more hits.

After The Flash finally figured out DeVoe was the big bad this season, he changed into his secret identity, Barry Allen Central City Police forensic scientist, to question DeVoe. Which played right into DeVoe’s hands. DeVoe had orchestrated events to cause Barry to confront him. DeVoe further manipulated Barry into continuing to confront DeVoe and DeVoe’s wife, until the DeVoes were able to get Barry’s boss Captain Singh to issue a restraining order against Barry. Next DeVoe transferred his consciousness into a man named Dominic Lanse, because DeVoe’s super brain was sapping all the energy from his body, making it atrophy and become paralyzed. DeVoe didn’t want his old body anymore, but he still had a use for it. After the mind transfer, DeVoe/Lanse took his former body to Barry’s apartment, stabbed it with a knife that was there in the apartment, and arranged for the police to find Barry standing over the lifeless, bleeding body of Clifford DeVoe. Presto, the framed Barry was on trial for murdering DeVoe. Now I know I said DeVoe orchestrated these events, but for DeVoe’s manipulations to work, Barry had to act like a complete idiot. So maybe I should have said DeVoe string quarteted them.

According to the show, Barry was arrested on Christmas Eve, 2017. His trial started when The Flash came out of its winter break on January 16, 2017. Which, uh, no! The Constitution guarantees everyone a speedy trial, but that doesn’t mean that the trial starts a few weeks after arrest, giving no one enough time to prepare. Even in the Arrowverse, trials aren’t as speedy as Speedy Gonzales. (You were expecting me to say as speedy as the Flash. Psych!)

The first thing we learned about the trial was that Cecille Horton, a prosecutor and also the fiancée of Barry’s father-in-law, took a leave of absence from the prosecutor’s office to defend Barry. Which seems doubtful. Although the Constitution – yes that again – does guarantee Barry the right to an attorney of his choice, he can’t choose an attorney who would have a conflict of interests in the case. An attorney who was employed by the prosecutor’s office while it was building its case against Barry then left the prosecutor’s office to defend Barry would probably be on the grounds that the attorney could well have learned privileged things about the prosecution’s case while was still in the prosecutor’s office.

On the other hand, considering how poorly Cecille represented Barry, the prosecutor’s office wouldn’t want to disqualify her. It probably welcomed her with arms more open than a Walmart on Black Friday.

The trial started with a montage of scenes in which Anton Slater, the prosecutor, lectured the jury. I’m assuming he was delivering his opening statement. Either that or he was testifying himself, because there wasn’t anyone in the witness stand. As I don’t think even the most careless of Hollywood writers would actually have a prosecutor testifying, we’ll go with opening statement.

Slater’s opening statement was a bit more complete than most. Opening statements give the jury a general overview of what each side expects its case will prove, not every detail of their case. If you give away your whole case in the opening statements, then the jury won’t pay attention when the witnesses testify. And if they’re not paying attention to the witnesses, how will the jury hear it when some witness confesses that he killed the victim? (Oops. Wrong show.)

Slater’s more-detailed-than-most opening statement included showing actual evidence to the jury, such as the restraining order that the DeVoes obtained against Barry and the knife that was still covered in blood. Showing evidence to the jury during opening statements is problematic. Technically, evidence isn’t supposed to be shown to the jury until after it has been authenticated by a witness or witnesses and the judge rules that it is admissible. If you show evidence during opening statements and the judge later rules that the evidence was inadmissible, you’re just inviting a mistrial. And while judges may like invitations to political fundraisers, they hate invitations to mistrials. They hate actual mistrials even more. For that reason, many judges will not permit lawyers to show the jury actual evidence during opening statements

About that restraining order that the DeVoes obtained against Barry. Captain Singh, Barry’s boss in the Central City Police Department, testified that he issued it on behalf of the DeVoes. Which he didn’t. Restraining orders are judicial orders that judges issue after hearing evidence detailing why the person seeking the order needs some other party restrained from doing something. The judicial branch issues restraining orders and the executive branch, through the police, enforce them. Singh could have given Barry a formal reprimand. He could have ordered Barry to stay away from the DeVoes as a matter of departmental policy. But unless Central City is in the habit of bouncing checks and balances, Singh wouldn’t have issued a restraining order against Barry.

So far we’ve had all of that, and I’m just getting started. Literally. I’ve just started covering this episode of The Flash. I won’t finish until next column. At least I think next column. Based on my notes, it might take longer to write about the trial of The Flash than the actual trial.

The Law Is A Ass #426: Ant-Man Doesn’t Right The Wrongs Of His Trial

I know you think you know where you are but you’re wrong. You’re 8-years old again, sitting in your dentist’s waiting room with a copy of Highlights for Children, looking at the “What’s Wrong?” puzzle on the back cover. Only this time, instead of one large picture full of things that are wrong to find, it’s 150 pictures. The 150 pictures that made up The Astonishing Ant-Man # 13.

Scott Lang, the astonishing Ant-Man eponymoused in the comic’s title, was on trial for a crime his daughter committed in an act of rebellion. Guess she had grown past the “Bad Boy” stage. In order to protect his daughter, Scott confessed to her crime and now was on trial.

I’m assuming the prosecution’s case came in badly for Scott; it usually does when the defendant confesses. But I can only assume that, because the story didn’t actually show us any of the prosecution’s case. The story started by showing a string of defense character witnesses all called to attest to the fact that Scott was a good guy.

And here’s our first “What’s Wrong?” Scott confessed, remember? Well the thing about confessions is juries tend to believe them. A lot. When the prosecution’s case includes a confession, that’s pretty much, “The state rests.” The defendant could introduce character witnesses that he’d been canonized for driving the snakes out of Ireland and inventing Triple Stuf Oreos; he’d still be convicted. Scott’s entire defense of character witnesses was pretty much the worst defense this side of, “Yes, the defendant ate his victims; but he didn’t eat them raw.”

If that wasn’t bad enough, Scott’s first two character witnesses were Machinesmith – a super villain who said Scott was a good boss, but so were his former employers Arnim Zola and Baron Zemo – and Grizzly, a super villain who said Scott was the only guy who would give Grizzly a chance after he committed all those murders. Which brings us to “What’s Wrong?” deuce, there’s no advantage in calling Nazi employees or mass murderers as character witnesses.

During a recess, Scott was sitting in the hallway. A correction officer was sitting right next to him, like about a foot away. That’s when the prosecutor, Janice Lincoln, approached Scott and told him the reason she left a lucrative civil practice in New York in order to prosecute Scott was Pym Particles, those wondrous things Hank Pym, the first Ant-Man, used to shrink to insect size. See, Janice was a lawyer who moonlighted as a super villain. (Yes, there is so a difference!) She resented the fact that her Beetle identity was the only insect-named character who couldn’t shrink. She told Scott she was going to bring his Ant-Man costume into court for a demonstration and if he provided her with Pym Particles from it, she’d throw the case.

And we have “What’s Wrong?” the drei heaves. No, not that a prosecutor offered to throw a case for a bribe. It happens. What was wrong is that no prosecutor would offer to take a bribe while talking loud enough to be heard by a defendant who was four feet away when a corrections officer was within earshot!

“What’s Wrong?” may the fourth be with you happened when the prosecution presented its demonstration with the Ant-Man costume. No, not the fact that the prosecution called the defendant as a witness. I assume Scott agreed to waive his Fifth Amendment as part of the bribery deal. It’s the fact that the prosecution was allowed to do this after defense witnesses had testified. The prosecution would have rested its case before the defense called its witnesses. The prosecution wouldn’t be able to re-open its case to put on new substantive evidence.

Now this being a comic book that had gone twelve pages without a fight it was about time for the super villains who wanted revenge on Scott to attack the courtroom. Can you guess what happened on Page 13?

Nine pages of fight scene in the courtroom with the judge and jury present later, the villains were defeated and the trial resumed. Which is “What’s Wrong?” the fifth – a fifth being what I need about now. Ant-Man just saved the lives of the judge and jury from some super villains. There isn’t a judge who wouldn’t declared a mistrial and then disqualify both himself and the jury from the case for the reason that Ant-Man just saved their lives. And that would tend to prejudice them in Ant-Man’s favor.

So trial resumed. Janice Lincoln told the court that she and the defendant had reached “a perfectly reasonable, totally illegal [emphasis mine] deal” which the defendant just broke so the prosecutor wanted to get back at him by calling her final witness and convicting him. And we have “What’s Wrong?” six in the city, the prosecutor just admitted in open court in front of a judge, jury, and court reporter that she accepted a bribe.

The fact that Janice called a witnesses after the defense had put on its case is not our next “What’s Wrong?” Prosecutors can’t put on substantive evidence after they’ve rested their case. But they may put on rebuttal witnesses; that is witnesses called for the specific purpose of rebutting evidence offered in the defense case. These witnesses don’t offer substantive proof of the defendant’s guilt, they poke holes in the defense case.

“What’s Wrong?” seven come eleven (don’t worry, we aren’t actually going that high) happened when Janice called Scott’s ex-wife to rebut all the defense testimony of his good character. Janice proceed to lead her own witness by asking question after question which suggested its own answer. However, Janice soon learned she could lead her horse to the Kool-Aid but she couldn’t make her drink it. Because Scott’s ex testified about how wonderful Scott truly was and what a good father he was.

After that turn of my stomach – err events – the jury found Scott not guilty. No, that’s not “What’s Wrong? the eighth, man. I said the jury was probably prejudiced in Scott’s favor after he saved their lives from the super villains. I was right.

I mentioned in the last column that over thirty years ago “The Trial of the Flash”  storyline lasted two years and made lots of mistakes. “The Trial of Ant-Man” lasted only two issues but I’ll bet it made about as many errors in those two issues as “The Trial of the Flash” made in its two years. Any takers?

The Law Is A Ass # 425: Ant-Man’s Trial Has Character Flaws

The Law Is A Ass # 425: Ant-Man’s Trial Has Character Flaws

A long time ago in a multiverse far, far away…

The Flash went on trial for murdering Reverse-Flash in a multi-part story called The Trial of the Flash. As storylines went, The Trial of the Flash went on for…

Ever!

Okay, it went on for two years. But back in 1983 – before decompressed storytelling and multi-part stories designed to be binge-read in trade paperback collections – two years was forever. The second “The Law Is a Ass” I ever wrote was also my first column about The Trial of the Flash. Several more followed. How many more? Well let’s just say before The Trial of the Flash, and I, were finished, I had earned enough writing about it to pay off my mortgage, insure my kids had no student loan debt, and reduced the national debt to zero from the taxes I paid.

So you can imagine my trepidation upon reading Astonishing Ant-Man# 12. It was, you see, the first part of The Trial of Ant-Man. Still, a journey of a thousand columns begins with a single step, so let’s get started.

Ant-Man – the Scott Lang version, not Henry Pym or the one nobody remembers because even I had to look up Eric O’Grady – was on trial for a crime he didn’t commit. Of course he didn’t. When a super hero is on trial in a comic book you can be pretty certain it’s for a crime the hero didn’t commit. In comics the only thing more certain than that is death and resurrection.

The crime Scott didn’t commit? His daughter – and former super hero Stinger – Cassie Lang committed it. How did this one time Young Avenger go rogue? Long story short; like this. To protect Cassie, Scott took the blame. He said he kidnapped Cassie and forced her to participate in his crime. It was a noble gesture, but it had serious repercussions; as the whole “The Trial of the Ant-Man” title would suggest.

The trial started as most trials do with jury selection but as there is virtually no way to make the voir dire process visually or dramatically interesting, the story ignored jury selection and jumped right to opening statements. Starting with the opening statement of Janice Lincoln, the prosecuting attorney. Janice went for the jugular. Scott’s. She argued that the jury should ignore Scott’s good deeds as Ant-Man, as Scott had been convicted of several felonies, abandoned his family, burned his bridges with the respected members of the super hero community, recklessly allowed his daughter to be killed – but resurrected, see I told you – and kidnapped that same daughter to force her to be his accomplice in a heist. Probably the only reason Janice didn’t blame Scott for The Great Train Robbery is that Scott’s strong suit has never been silent.

There’s a name for that in the legal biz. We call it “putting the defendant’s character in issue.” We also call it improper. In a criminal trial, the prosecution is expressly forbidden from offering evidence, testimony, or even opening statements about a defendant’s bad character in order to prove that the defendant acted in accordance with that bad character. Or, in words that aren’t ripped from compelling prose that is the Federal Rules of Evidence, it’s improper for the prosecutor to prove or even argue that the defendant has been a bad person in the past so probably continued to be a bad person and committed the crime.

There are some exceptions to this rule. We won’t go into all of them, because only one of them applies to the story at hand. The prosecution may address the issue of the defendant’s bad character when the defendant puts his or her own character into issue first. If the defense offers evidence or argues that the defendant is a good person who would never commit the crime – in the legal biz we call that “opening the door” – the prosecution is allowed to walk through the open door and rebut evidence of good character with evidence that the defendant is a bad person who would commit the crime.

In her opening statement, defense counsel Jennifer Walters told the jury all about what a good person and upstanding hero Scott Lang was; ending with “I’ve seen it with my own eyes – this man is a hero.” It was after Jennifer Walters made this opening statement that Janice Lincoln made her opening statement and assassinated Scott’s character like it was that other Lincoln at Ford’s Theater. (What? Too soon?)

So what’s my problem with Ms. Lincoln’s opening statement? After all, if the defense put Scott’s character in issue – and it did – then the prosecution would be allowed to rebut that claim of good character with an argument of bad character. My problem is that if proper trial procedure had been followed – and the story went out of its way to establish that the trial judge, the Honorable Ronald Wilcox, was a no-nonsense, by the book judge who would follow proper procedure – the prosecution would not have been allowed to make the opening statement that it did, because the defense wold not have put Scott’s character into issue yet.

Proper trial procedure dictates that the prosecution makes its opening statement first, because it has the burdens of producing the evidence proving the defendant guilty and persuading the jury that the defendant is guilty. The prosecution makes its opening statement before the defense makes its opening statement. In a real trial, not one that played with proper procedure for dramatic purpose, Janice Lincoln wouldn’t have been able to attack Scott’s character in her opening statement, because she would have given it before the defense opening statement and before Jennifer Walters opened the door to Scott’s character.

Oh, I’m sure that Ms. Lincoln would have had her opportunity later in the trial. The defense’s sole tactic was to convince the jury that Scott Lang was a hero who wouldn’t commit the crime, so the defense was going to open that door eventually. Then all that other bad stuff about Scott’s character would have come in. In the legal biz we have a name for that, a bad idea.

Here’s a piece of advice to all you future lawyers out there: If you put your client’s character into issue, the prosecution is allowed to counter with proof of your client’s bad character. So don’t put your client’s character into issue when your client’s closet has more skeletons than The Pirates of the Caribbean.