Category: The Law Is A Ass

Could S.H.I.E.L.D. Have Gotten That Warrant? Search Me.

Could S.H.I.E.L.D. Have Gotten That Warrant? Search Me.

 

 

 

 

To be honest, I no longer remember what Jane Foster did to make S.H.I.E.L.D. agents go all the way to Asgardia to look for her back in The Mighty Thor vol 2 # 9. But, to be honest, it probably no longer matters.

Whatever it was that Jane had done might to attract S.H.I.E.L.D.’s attention have been undone, when Kobik , those fragments of a Cosmic Cube that had coalesced into a little girl, changed the back story of the entire Marvel Universe to make Captain America an agent of Hydra. So it’s possible that whatever Jane had done, she didn’t do anymore.

Moreover, the people that were interested in Jane Foster were agents of S.H.I.E.L.D. But we’re talking about agents of S.H.I.E.L.D. under the old regime. You know, back when S.H.I.E.L.D. thought restraint was something you found in a BDSM club and overreach was what you did to get the salt at a crowded table. We’re hoping it no longer feels that way under the new regime or that it would still care about Jane Foster.

Att the time, it mattered to S.H.I.E.L.D., however, so we got this nonsensical scene in The Mighty Thor vol 2 # 9. (Boy will I be glad when Marvel goes back to legacy numbering. Cubes and supermodels’ hair should have volume, not comic books.) S.H.I.E.L.D. wanted to know what Jane Foster’s relationship was to the new Thor and, rather than simply reading the recap page of any issue of the comic, it obtained a warrant to search Jane’s quarters in Asgardia. S.H.I.E.L.D., presented its warrant to the officials of Asgardia, and tole them they intended to execute said warrant and search Jane Foster’s quarters with Asgardia’s permission or without it.

Whether S.H.I.E.L.D. actually conducted the search or what they found – the comic cut away from the agents and never returned to them – is the little question. But big question is how the hell did S.H.I.E.L.D. to get that warrant in the first place?

See there’s this little thing called jurisdiction. Jurisdiction isn’t the question of whether a judge has a stuttering problem, it’s the question of in what geographical areas the judge has the authority to issue rulings that would be binding. State court have the authority to issue rulings that cover the state in which they sit. Federal courts can issue rulings covering the districts or circuits in which they sit. The United States Supreme Court can issue rulings covering the entire country. And a tennis court can only make rulings on no-fault matters.

The problem with S.H.I.E.L.D.’s warrant is that Asgardia is a foreign country or realm or whatever it is. And whatever it is, it certainly isn’t the United States. United States courts have the jurisdiction over the United States not over foreign countries.

Look at extradition, which isn’t some Christmas custom you gave up for Lent. If United States courts could issue arrest warrants that were valid in other countries, we wouldn’t have to rely on foreign countries arresting people within their borders then extraditing them back to the USA. But we can’t, because our courts have no jurisdiction over foreign countries, so we do.

Better yet, look at nuclear proliferation treaties and the verification problem. The United States wants the ability to be able to search countries like Iran and North Korea to verify whether nuclear weapons are being built there. If the United States courts had jurisdiction over these foreign countries, they could issue and enforce search warrants. Verification wouldn’t be a problem. That verification has to be negotiated into a treaty leads one to the inevitable conclusion that United States Courts don’t have jurisdiction over foreign countries.

But what about the International Court of Justice, also known as the World Court? Does it issue search warrants? I don’t know. But if it does, could S.H.I.E.L.D. have gone to the World Court to obtain a search warrant for Asgardia? Maybe once, but not now.

If Asgardia were still sitting above Broxton, Oklahoma, then S.H.I.E.L.D. could have gone to a the World Court to get a search warrant, because Broxton and Oklahoma are both part of the world. (True some of the states have been talking about secession, but they only want to secede from the country not the world.) However, Asgardia isn’t in Broxton anymore. It moved. First, bang zoom, to the Moon and then into orbit around Saturn. People who visited Asgardia said it was out of this world. Now it actually is.

Asgardia isn’t part of the planet Earth anymore. Which means that the World Court would lack jurisdiction over it, because Asgardia isn’t just a foreign country, it’s an extra-terrestrial country.

I know of no judge on the planet Earth that would have had sufficient jurisdiction over Asgardia to issue a valid search warrant. And I know of no extra-terrestrial judge who could have issued the warrant either.

Please don’t start telling me about all the extra-terrestrial judges in the Marvel Universe such as Ronan the Accuser or Judge Kray-Tor. Maybe they could only have issued the warrant, but they could only have done it if S.H.I.E.L.D. had gone to them requesting it. And do you think S.H.I.E.L.D. went to one of them to get the warrant?

I don’t. But I cheated. I examined the actual search warrant those S.H.I.E.L.D. agents were flashing using the low-tech equivalent of that tired TV trope, “zoom and enhance”, a magnifying glass. I read the small print that was actually on the warrant. It was issued by a New York state court in Westchester County. Not Ronan or Judge Kray-Tor or Diana Ross and the Supreme Intelligence. So, case closed.

And that leaves only one remaining question. Why the frak didn’t I think to examine that search warrant under a magnifying glass several paragraphs ago, before I started to write about the World Court or extra-terrestrial courts, and spare myself all that typing?

The Law Is A Ass #418: HELLCAT IS NOT HEDY’S PATSY

The Law Is A Ass #418: HELLCAT IS NOT HEDY’S PATSY

Childhood friends turned bitter enemies. Sounds like the stuff of soap operas, not to mention more than a few recent comic books. And so we have former childhood frenimies and comic book characters Patsy Walker and Hedy – not Hedley – Wolfe. Nowadays, when they think about their shared past it’s angst for the memories.

All because of Patsy’s mother. When Patsy was a teen, her mother, Dorothy Walker, exploited Patsy by writing a series of teen humor comic books starring Patsy and Hedy. Patsy was embarrassed by them, but her mother wouldn’t stop writing them. That caused a rift between Patsy and her mother. Of course, the fact that when Patsy’s mother was dying she tried to sell Patsy to the Devil so that Patsy would die instead of her probably didn’t help their mother-daughter relationship. It makes Joan Crawford’s hanger management issues look like Mother-of-the-Year stuff.

Dorothy and Patsy didn’t get along. Hedy, on the other hand visited Dorothy frequently and paid Dorothy’s hospital bills. So Dorothy asked Hedy to write up a contract granting Hedy all the rights to the Patsy and Hedy comic books, which Hedy did. Now Hedy is reprinting all those comics, much to the rekindled embarrassment of Patsy. And her re-Nooked embarrassment, too.

Patsy, who is also the super heroine Hellcat, hired Jennifer Walters, attorney-at-law when she’s not being the super heroine She-Hulk, to represent her against Hedy and recover the rights to the comic books. Jennifer, in turn, hired former super heroine and now owner/operator of the Alias Detective Agency, Jessica Jones to investigate the case. (Hellcat? She-Hulk? Jessica Jones? I think this book has a heroine addiction.)

Jessica’s investigations led her to believe that a dresser Hedy had in her living room deserved to be checked out. So in Patsy Walker, A.K.A. HELLCAT! # 7, Jessica and Hellcat broke into Hedy’s apartment and found Dorothy’s medical records in the dresser.

Jessica took a picture of the records and texted it to Jennifer. From those records Jennifer learned that when Dorothy signed the contract with Hedy, Dorothy was on a heavy morphine drip and mentally incapacitated. How incapacitated? Well, let’s just say she tried to sell her own daughter to a demon so she was like a mint tablet that couldn’t be turned into fertilizer; non-compost Mentos.

Because Dorothy’s morphine drip prevented her from having the mental capacity to form a contract, her contract with Hedy was null and void. A contract is a meeting of the minds and you can’t have a meeting of the minds when one of the minds isn’t there because it isn’t all there.

That was Jennifer’s legal argument, anyway. Hedy’s counter argument was that the evidence was obtained illegally so wasn’t admissible. As this is Patsy’s comic book, guess which argument won. If you guessed Patsy, then you won.

Evidence that’s obtained illegally is perfectly admissible in court. Iago famously said, “He who steals my purse steals trash,” but if they were prosecuting Othello for stealing said purse, do you think they’d introduce trash as evidence or the purse? Evidence that was illegally obtained by theft is admissible in theft prosecutions. So, yes, evidence that is obtained illegally is admissible.

Okay, our case isn’t a theft case, it’s a civil suit over contract and copyright issues. And my stolen property argument is a more of a straw man than Ray Bolger. The question is, if someone in a civil trial obtains evidence illegally and gives it to one of the lawyers, can that lawyer use the evidence in the case?

The general rule is that if the lawyer wasn’t involved in obtaining the evidence and didn’t know how it was obtained, the lawyer can introduce it. The story clearly established that Jennifer had no idea what Patsy and Jessica were doing. So in most cases, Jennifer would have been able to introduce the evidence against Hedy even though it was obtained illegally.

There is, however, a wrinkle to the general rule that would have some bearing on admissibility in this case. Jennifer hired the Alias Detective Agency to obtain evidence in the case, so there are agency problems.

No, not problems with the Alias Detective Agency, problems with the fact that Jessica was Jennifer’s agent. When Jessica and Patsy broke into Hedy’s home, they were acting on the behalf of Jennifer. The fact that Jennifer didn’t order them to do this doesn’t matter, they were still acting as Jennifer’s agents because she had hired Jessica to obtain evidence in the case.

Under agency law Jessica’s illegal act can be imputed back to Jennifer and make it as if Jennifer, herself, broken into Hedy’s apartment. If Jessica’s illegal act were to be imputed back to Jennifer, then Jennifer wouldn’t be able to admit the evidence.

Don’t think that settles the matter, though. We need to break out the starch, because there is a wrinkle to this wrinkle. Jessica and Patsy didn’t actually take the hospital bills, they just photographed them. So they didn’t obtain any evidence illegally, they only found evidence illegally. The evidence was obtainable through perfectly legal avenues. All Jennifer had to do was have Patsy, Dorothy’s next-of-kin, request Dorothy’s records from the hospital. After the hospital supplied the records, Jennifer would have obtained the evidence legally and it would probably have been admissible. When Jessica pointed this out, Hedy made like the Carlsbad Caverns and caved.

The fact that Jennifer needed Jessica to find this evidence in the first place makes me wonder how good of a lawyer Jennifer is. If I had a client who wanted to void a contract signed by a mother who was in the hospital and dying, the second thing I would have done was have the client request the mother’s medical records to see whether the mother was on any mentally-incapacitating drugs. The first thing I would have done is make sure the client’s check cleared.

Still, all’s well that ends well. One page and three days (according to a caption) later, Hedy settled out of court and surrendered all the rights to the comics back to Patsy and the Patsy-Hedy childhood rivalry story finally ended. And it was about time, if you want my fr-angst opinion.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #417

HE’S NOT RUNNING A LOKI CAMPAIGN

It wasn’t funny the first time, okay?

The recent mini-series Vote Loki had the Asgardian god running for President. The series was a political satire with Loki running on the platform that he would lie to America’s face and they would love it. Here’s what followed.

Nisa Contreras, a reporter for the Daily Bugle, attempted to uncover information to discredit Loki. However, every time that she did – Loki’s followers were brainwashed cult members or Loki orchestrated political unrest in Latveria– her efforts backfired. Information which would have torpedoed any other candidate’s chances didn’t discrediting Loki, it made him more popular. The same joke was in issue 2 and repeated in issue 3.

Fortunately for Vote Loki, political satire doesn’t have to be funny. Nineteen Eighty-Four by George Orwell is political satire and it’s about as funny as a Pauly Shore movie. Every Pauly Shore movie. Combined.

If you’ve been paying attention, you probably gathered that I didn’t find Vote Loki very funny; mostly because the joke Vote Loki kept repeating wasn’t funny the first time; the first time being when I actually lived said joke last year. But, I’m not here to offer my critique of humor. After all, my column isn’t called “The Laugh Is a Ass.” So you’re probably wondering where’s the law in all of this.

It’s here. In Vote Loki #1, J. Jonah Jameson asked Loki how he could run for President. After all, Article II, Section 1 of the United States Constitution says, “No person except a natural born citizen… shall be eligible to the office of President.” Loki explained that as a mythical figure he was a “manifestation of stories… I have lived and died hundreds of times, retelling some version of the story of what is Loki.” Loki further explained that the current version of his back story was that he was born to an American couple in Accident, Maryland and that Odin then “quickly took me from them to ‘put the baby in its rightful place in Asgard.’ ” So he was a natural-born citizen and eligible to run for President.

Even if we believe this preposterous claim that basically allows Loki to alter his back story to suit his needs – a talent as useful for comic-book editors infatuated with retcons as it is for politicians who have something to hide; which is just about all of them – Loki’s new back story doesn’t help him as much as he thinks.

First there’s the question of whether Loki is still an American Citizen? Remember, he’s served as the ruler of Asgard on a few occasions. Usually by usurping the throne while Odin was in the Odinsleep or some other convenient plot device, but Loki has ruled Asgard.

Article 8, Section 1481 of The United States Code spells out several ways in which a citizen of the United States can lose his citizenship. Subsection (a)(4) of the code says a citizen shall “lose his nationality by voluntarily… accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state.” So Loki’s stints as ruler of Asgard may be enough, under the United States Code, to say Loki lost his citizenship. And if he’s not a citizen of the United States, he can’t run for President.

There is a complication to this argument, the case of Afroyim v. Rusk  which we’ve talked about before. In that case, the Supreme Court of the United States ruled the Constitution does not grant Congress the authority to strip a person of his citizenship through a legislative act. Congress has the right to confer citizenship not take it away. The only way a citizen can lose citizenship is if the citizen voluntarily renounces it.

Some might argue that by voluntarily accepting the rulership of a foreign realm, an act Loki knew would result in him being expatriated, he also implicitly renounced his American citizenship. Doing something you know will cost you your citizenship is the same as saying you don’t want it. Others, including the Afroyim case, seem to disagree. The issue isn’t completely settled.

If the United States Code’s dictates cannot strip citizenship unless the citizen both accepts the foreign post and says he or she is renouncing his or her citizenship, Loki’s still a citizen. Loki didn’t even know he was an American Citizen until recently so he wouldn’t have known that he had any citizenship to renounce. Loki could still run for President.

Except that he couldn’t.

Even if Loki is still a natural-born citizen of the United States, he is not eligible to run for President. Jonah Jameson’s question concentrated on the first half of the paragraph in Article II Section 1 of the Constitution which sets out the necessary qualifications to be President. J.J.J. didn’t read far enough. After the paragraph gets done talking about natural-born citizens, it adds, “neither shall any person be eligible to that office who shall not have attained the age of thirty five years [at several millennia, I think Loki’s more than meets that requirement] and been fourteen Years a resident within the United States.” [Emphasis added] (By the way, that Y in Years was capitalized in the original. What can I say, English usage was different back in the days when they made the letter S look like the letter F.)

We’ll skip over the attained the age part. Loki’s millennia old, he just lies about his age. He’s more than old enough to be President. But fourteen years a resident? Now we’ve got him!

Remember in Loki’s new continuity he may have been born in the USA but he didn’t stay long. Odin “quickly came” and took the baby Loki up to Asgard. Since then Loki’s spent time in Asgard, he’s been banished to Hades, he’s been imprisoned in an Asgardian tree. He has, in fact, been banished to lots of places, and imprisoned in lots of other places.

Loki has spent some time on Earth and in America, frequently fighting Thor. But there were other stays in America; like when he was a member of the Young Avengers. That trip to America only lasted 15 issues; less than a month and one-half real-world time and probably only a fraction of that time in Marvel Universe time.

So, yes, Loki has spent some time on Earth, but is it enough time? Is it fourteen years? The entire modern Marvel universe beginning with Fantastic Four #1– Marvel may be forbidden from publishing the book but we can still talk about it – has only been ten years. Maybe a few more. Let’s say it’s been as much as fourteen years. But Loki – whichever version of the myth has come out to play this month – has not spent most of that time on Earth, let alone in the United States. So he hasn’t lived in the United States for 14 years and isn’t eligible to be President.

I wish someone from Earth 616 had come to me and talked out their Loki problem. I could have told them that if they just read a little farther in the Constitution they could have found the clause dictating that Loki couldn’t run for President. I couldn’t do anything to prevent the circus that was last year’s presidential election process here on our Earth. But it’s nice to think that, had they but asked, I could have helped the Marvel Universe avoid their own version of the Cirque du Soiled.

The Law Is A Ass #416: The Metal Men Are In Cogito

René Descartes once said, “cogito ergo sum,” which, for those of us not fluent in dead languages means, “I think, therefore I am.” René’s observation was pithy, but it leaves one question unanswered. I understand that because I think, I am; but what, exactly, am I?

What am I also happens to be the question raised in the Metal Men story in Legends of Tomorrow #4, “Everything Old Is New Again!” Or, more precisely, What are the Metal Men?

Technically speaking, and speaking technically, the Metal Men are androids. They were created by Dr. Will Magnus when he put advanced thinking devices called Responsometers into some vats of molten metal, one Responsometer per vat, and vat’s a lot of metal. The Responsometers caused the metal in the vats to form metallic bodies around themselves. The resulting bodies – one for each of the vats of metal used – had the properties of the metal which formed them. The bodies were also, thanks to the A.I. properties of the Responosmeters, “self-actualizing entities capable of making their own decision and independent thought.”

Magnus made several of these Metal Men – Gold, Iron, Tin, Mercury, Lead, and Platinum– all of whom had artificial intelligence thanks to their Responsometers and incredible metal-based powers. The Metal Man had the potential to be agents of incredible good, so naturally Army General Thelma Scarletti wanted to dismantle the Metal Men and harvest their Responsometers for her own purposes. Because what’s a general in a comic book if not self-interested; obsessed; lacking any morality; and, you know, basically evil? Seriously, is there any high-ranking military officer in a comic book who isn’t an offal sir not a gentleman? I shudder to think how Amos Halftrack would behave if DC were ever to license Beetle Bailey.

Because it was Chapter 4, “Everything Old Is New Again!” opened with a dangling cliffhanger; Dr. Magnus and the Metal Men surrounded by General Scarletti and more solders than you could shake a stick at, provided you ever wanted to shake a stick at some soldiers. Scarletti demanded that Dr. Magnus turn the Metal Men over to her or there would be dire consequences. The Metal Men wanted to fight. Dr. Magnus wouldn’t allow that, as he considered the dire consequences would be death and destruction. His and the Metal Men’s, respectively. Magnus was preparing to surrender the Metal Men to General Scarletti, when Cliff Steele showed up.

Only Cliff didn’t show up as Robotman, former daredevil who had nanomachines injected into himself which created a new robotic body around his still-living brain when his old body died in a car crash and who became a freelance super hero. Instead he showed up as Clifford Steele, attorney-at-law. Not just an attorney, but an attorney who found a sympathetic judge who issued a writ of habeas corpus releasing the Metal Men into Cliff’s custody until a court case could resolve the issue of whether the Metal Men were robots with artificial intelligence or living beings with the full panoply of constitutional rights.

Now this revelation raises a couple of questions. First, when did Cliff become a lawyer. No, seriously, when? I’m not saying that Cliff couldn’t have gone out and secured himself a law degree at some point, I just don’t remember him ever doing it. Was this something he did while he was still an adventurer and daredevil before he got his robot body or something he did to fill those idle hours while he was sitting around waiting for clients to hire Robotman, freelance super hero? Okay, it’s not an important question, but it’s still one I wondered about.

The important question is where did Cliff find a judge who was so sympathetic he or she would willing to grant the Metal Men a habeas writ before the trial which was to decide their legal status? The Fourth Amendment says that “The right of the people [emphasis added] to be secure… against unreasonable searches and seizures, shall not be violated.” So the Fourth Amendment only applies to people. You couldn’t, for example, get a writ of habeas corpus to force the police to return your Mr. Coffee if it had been illegally seized during a warrantless search. The Mr Coffee is a mister in name only; it’s not a person.

For the same reason, until some court had a trial and ruled that the Metal Men were people, who were protected by the Bill of Rights, and not machines, which were not, I don’t think any judge would grant the Metal Men a habeas. By granting the Metal Men a habeas the judge basically settled the ultimate issue of the pending trial. The judge granted a writ intended only for people, so the judge implicitly ruled that the Metal Men were people.

That doesn’t mean there was nothing Cliff could have done. There is a perfectly good writ that can be used to return property that has been illegally seized. It’s called the writ of replevin. Cliff could have filed one of those saying the Metal Men should be returned to Dr. Magnus as his property, until such time as a court could determine whether they were property or people.

Wouldn’t that also mean that the judge issuing the replevin writ is deciding the ultimate issue? After all, wouldn’t he be implicitly ruling that the Metal Men were property by granting a replevin on their behalf?

No.

The Metal Men are androids. They are presently regarded as machines and the law would presume that they are machines until such time as a court ruled them to be people. Thus a judge could grant a replevin because of the Metal Men’s current presumptive status as machines without any ruling, implicit or otherwise, on the ultimate question of the trial; are the Metal Men actually living beings?

So what do you think, are the Metal Men simply robots? Or are they living beings and greater than the ergo sum of their parts?

The Law Is A Ass #415: The Green Hornet Throws A Tamper Tantrum

I think the Green Hornet is starting to believe his own press clippings.

The Green Hornet is a hero who pretends to be a villain. By day he’s Britt Reid, publisher of Chicago’s The Daily Sentinel newspaper. At night, Britt dresses up as the Green Hornet and pretends to be the secret crime boss of Chicago. He uses his guise as a villain to infiltrate criminal organizations and thwart them. And get the bad guys arrested. So sometimes he does some bad things but for the right reasons. Only now I think he’s starting to believe he is a criminal, because in The Green Hornet: Reign of the Demon #1, he started doing bad things for the wrong reasons.

According to the back story of Reign of the Demon, several months ago the Green Hornet took down crime lord Vito Cerelli. Apparently, the Hornet indicated that he was going to retire and some people believed that nonsense. I called it nonsense because, like nature, organized crime in comic books abhors a vacuum. As soon as one crime boss is overthrown, another comes in to take over. Making the Green Hornet needed all over again. Let’s face it, The Green Hornet had about as much chance of retiring as all 5’7” of me has of slam dunking on Dikembe Mutombo. Britt Reid’s former secretary, Lenore Case, was one of those people who believed he was going to retire the Green Hornet and she didn’t think that was a good idea. So she set out to change his mind. By robbing a bank as the Green Hornet.

Yes, you read that right. Lenore Case took her boss’s Green Hornet costume and equipment and used it to rob a bank. Then she allowed herself to get arrested with the Green Hornet costume. All this to “make [Britt] see that giving up being the Green Hornet was a bad idea.” How Lenore expected that to convince Britt not to retire the Green Hornet, I’m not sure and that’s a problem. Green Hornet’s chauffeur, Kato, is the Asian member of the group. He’s the one who’s supposed to be inscrutable.

Britt didn’t want Lenore to “rot in prison” so he devised a plan to spring her. The Green Hornet and Kato broke into police headquarters. They stole the Green Hornet costume Lenore used from its box in the Evidence Room and replaced it. When the district attorney took what he thought was a Green Hornet costume out of the box to show the jury, he pulled out a clown costume instead.

The trial judge gave the prosecutor a one-hour continuance to try to find the physical evidence, which, obviously, the prosecutor couldn’t do. So one hour later, because, “the state has evidently misplaced all of its supposed evidence against Miss Case,” the judge dismissed all the charges against her. Moreover, given that the trial had started when the judge dismissed the case, Lenore couldn’t be tried again. Once a trial has started, jeopardy has attached for double jeopardy purposes and if the case is dismissed, the defendant can’t be tried again. So Lenore walked on the bank robbing charges, not just then but for all time.

Usually when the Green Hornet does something bad, it’s to stop a criminal operation and bring the criminals to justice. Here the Green Hornet tampered with evidence and obstructed justice – both felonies so I’d call them bad things – to keep a bank robber from being convicted and punished. That’s not a good thing, that’s another bad thing.

If it’s not bad enough that the Green Hornet let a bank robber escape justice, he also hurt other people in the process. Remember, Lenore did rob the bank. So the prosecutor wasn’t doing anything wrong when he prosecuted her. And the police officer in charge of the evidence room was doing what he was supposed to do by storing Lenore’s Green Hornet costume as evidence to be used against her in trial. But the Green Hornet made these two innocent officers of the law look incompetent and have probably ruined their careers in the process. And all to help a guilty bank robber. So, yay!

Of course, the Green Hornet had help in obstructing justice in Lenore’s case from the least likely source. The judge presiding over the trial.

The judge felt that because the state had misplaced all of its evidence against Lenore, he had “no choice but to dismiss all charges.” Which was a bit precipitous on his part. A bit? It was a whole monsoon of precipitous. The judge shouldn’t have dismissed the charges, because there is no way that box contained all the evidence the state had against Lenore.

The chief of police didn’t say, “Someone wearing a Green Hornet costume just robbed a bank, round up the usual suspects. Oh, and while you’re at it, better bring all the secretaries in the city for good measure.” No, the police have to have followed some trail of evidence which led them to Lenore. The story didn’t say what that evidence was but it doesn’t matter what it was. What matters is that there had to have been some evidence which led the police to Lenore Case. Evidence other than that Green Hornet costume which disappeared.

The prosecutor could still have tried the case against Lenore. He could have introduced all of the other evidence that led the police to Lenore in the first place. He could then have introduced the testimony of the officers who arrested Lenore and found the Green Hornet costume in her possession. There was enough other evidence that the case could – should – have gone forward.

Sure the defense attorney could have attacked the credibility of the state’s case, because someone misplaced the Green Hornet costume. And maybe the jury would have found her not guilty for that reason. But that was no reason for the judge not to let the trial continue. The state had other evidence and it should have been allowed to make its case as best it could.

Makes me wonder what they taught that judge in judging school. Other than how to be snarky, that is.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #414

NEW YORK SHOULDN’T HAVE GIVEN THE X-MEN A PARKING PASS

Let’s say you’ve done something really stupid. No, let’s say I’ve done something really stupid; that’s more realistic. There are many answers I could give when someone asked me, “Why did you do that?” However, I presently subscribe to the theory championed by no less a personage than Harlan Ellison. The best answer is, “It seemed like a good idea at the time.”

Sometimes, however, not even that answer – which, unlike me, is direct and to the point – will suffice. There are some stupid things for which the answer, “It seemed like a good idea at the time,” will not work because they are so monumentally stupid that they could never have seemed like a good idea at any time. Things like Clippy, New Coke, and X-Men Gold #1.

No I’m not saying the idea of publishing X-Men Gold was stupid. I’m saying that something that happened in X-Men Gold #1 was of the so-monumentally-stupid-that-it-could-never-have-seemed-like-a-good-idea variety.

After the X-Men Gold team saved Manhattan from an attack by former Galactus herald Terrax – Why did Terrax attack Manhattan; it seemed like a good idea at the time – they went back to the new Xavier Institute for Mutant Education and Outreach to have one of their relaxing Softball games. They were met by the City Register for New York who presented current X-Men leader Kitty Pride with the invoice for the first six months’ rent and property tax for the parcel of land on which the Mayor of New York agreed to let the X-Men relocate their school. Kitty was shocked when she read the bill. It was for eighteen million dollars. That’s eighteen million. With an eight.

Turns out the X-men relocated the Xavier Institute to the middle of Central Park.

And that’s what was so monumentally stupid that it could never have seemed like a good idea at any time. For both the X-Men and New York City.

Judging from Kitty’s shock at seeing the invoice, I can only conclude she signed the lease without reading it first and ascertaining how much the rent and property tax was going to set the team back. And there is never a time when signing a lease without reading its terms – especially its rent terms – could seem like a good idea.

Thirty-six million dollars a year in rent and property tax isn’t just steep, it’s pushing Sisyphus’ rock up a right angle. Unless every oil sheik and internet billionaire in the world has offspring in need of mutant training or Kitty can get a copyright on the word “The,” I don’t see how the Xavier Institute will ever earn enough money to pay rent and property tax that’s so x-orbitant.

And speaking of monumentally stupid ideas, which we were, who in the Mayor’s office thought it would be a good idea for the Xavier Institute to relocate to Central Park?

Central Park is home to a zoo, a castle, a carousel, a concert shell, several playgrounds, baseball fields, skating rinks, fountains, a boat house, several theaters, statues, gardens, a world-class restaurant, several other restaurants, even more hot-dog carts, jogging trails, horse-drawn carriage rides, a memorial to John Lennon, lakes, ponds, and enough trees to make Robin Hood, his Merry Men, and every dog in the tri-state area happy. It is the fourth most-visited tourist attraction in the world with forty million visitors every year. And this is where the Mayor of New York agreed to put a school that’s attacked so frequently its got a training facility called The Danger Room?

Your Honor, have you heard of “collateral damage?” In case you haven’t, collateral damage isn’t what the 2008 housing bubble burst inflicted when people got their collateral foreclosed on. It’s what happens to innocent people when they’re hanging around major battlefields.

Mr. Mayor, the X-Men have villains with names like the Brotherhood of Evil Mutants, Mr. Sinister, and Apocalypse. These are not nice people. They would think nothing of attacking the X-Men in their home. A home you just allowed them to put in Central Park. If even one percent of those forty million visitors get hurt the next time someone attacks the Xavier Institute, you’ve just opened your city up to about 400,000 lawsuits. I practiced criminal defense law for 28 years and don’t know a tort from a torte, and even I would know how to file the complaints for the class action suits that are sure to follow.

Mr. Mayor, you may have thought renting Central Park to the X-Men was a good idea at the time. You might have even thought it would be a win-win situation. And it will be. For the plaintiffs and their lawyers.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #413

MATT MURDOCK HAS SOME INTERESTING CONFLICTS

Has this ever happened to you? You’re sitting there, minding your own business, reading your comic books, when something in the story makes you go, “Now, that’s not right!” Of course you have. You can probably count on the fingers of one hand, the number of times you’ve read recent comic books and haven’t found something that made you say that. And probably still have enough fingers left over for an obscene gesture.

I have a confession to make, I’ve done it, too. The difference being, when you do it you can complain on a message board or something. When I do it, then I get to do this…

So there I was minding my own business reading Jessica Jones #9. I had just gotten to the part where Sharon Carter, acting head of S.H.I.E.L.D., arrested Jessica Jones, the super heroine turned private investigator, and threw her into jail for being uncooperative. Oh, yeah, and for insulting Sharon’s hairdo. No, seriously, that’s why Sharon tossed Jessica in jail.

No, that’s not the part that made me say, “Hey, that’s not right.” I mean arresting Jessica for bad hair day in the first and throwing her into a cell on Ryker’s Island is not right, but this sort of thing has happened so often in recent comic books that I’m rather inured to it. What is it about being head of S.H.I.E.L.D.? First it turned first Maria Hill  and then Sharon Carter into ill-tempered, officious, untrustworthy tenants in Apartment 23  who think a Bill of Rights is what you pay when you buy from the remainder table of the Leftorium.

No, the thing in the story that gave me pause was when Jessica’s attorney showed up and got her released with a writ of habeas corpus. At least, I assume it was a habeas corpus. The story didn’t say, but I kind of doubt Jessica’s attorney used a Get Out Of Jail Free card. Those things were only honored by Warden Crichton on the old Batman TV series; and, judging how many repeat offenders that show had, with alarming frequency.

It also didn’t bother me that Jessica’s lawyer got her sprung from her bogus arrest by using the great writ; springing people from bogus arrests is exactly what habeas was writ for. No what bothered me was that Jessica’s lawyer was Matt Murdock.

Remember, the Purple Children made the world forget that Matt Murdock was Daredevil, meaning the New York State Bar Association forgot why it had disbarred Matt  and reinstated his license to practice law in New York, Matt has been an assistant district attorney in Manhattan. Matt doesn’t get people out of jail anymore, he puts them in jail. So for Matt to show up with a habeas corpus for Jessica would be a dubious course oops.

Could Matt have been representing Jessica through a private practice he maintained on the side to earn extra money? Probably not. Some jurisdictions do allow their assistant district attorneys to run a private practice on the side. I don’t know whether New York is one of those jurisdictions, but it really doesn’t matter. Even those jurisdictions that allow their prosecutors to have private practices on the side, don’t allow them to accept cases which would present a conflict of interests.

And that means district attorneys can’t usually handle criminal cases in their side practices. Courts tend to find conflicts when the same lawyer is actively trying to put criminals behind bars in the job while trying to keep them out of jail on the side. Even if there are no actual conflicts, lawyers are supposed to avoid the appearance of impropriety and earning money on both sides of the criminal justice system doesn’t do that.

Matt could write wills, do civil litigation, negotiate contracts, and that sort of thing. In The Unstoppable Wasp #6, Matt showed up as Nadia Pym’s immigration lawyer. Even that could be permissible. Criminal law and immigration law sometimes intersect, but not so often that being a prosecutor and an immigration attorney automatically cause conflicts of interest.

If Matt were representing an immigrant who was being deported because he or she was being prosecuted for a crime in New York, that would probably be a conflict of interests. But the conflict of interests decision would be made on a case-by-case basis and not require an automatic withdrawal. But Matt representing criminal defendants while also serving as a district attorney in New York? That’s as iffy as a Bread song.

Beside which, Matt is already in enough hot water with his boss at the District Attorney’s office. So, even if it weren’t a conflict of interests for Matt to represent criminal defendants in his side practice, I doubt he’d want to risk incurring his boss’s wrath even further by eating prosecute-to ham with a side of defense work.

And why did the story have to use Matt Murdock anyway? Jennifer Walters is a practicing attorney in New York City, she could have been Jessica’s attorney without the whole conflict of interest problems. Or maybe Jeryn Hogarth could have represented Jessica. Why, there’s even a Manhattan-based attorney in the Marvel Universe named Robert Ingersol. He could have represented Jessica. I happen to have personal knowledge that he could use the money.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #412

FLASH DRINKS SOME MILK OF AMNESIA

How do research labs in comic book or science fiction universes or, in this case, the TV show The Flash stay in business? Given that their experimental default setting seems to be catastrophe, how can they afford their insurance premiums?

To no one’s surprise, an experiment in the Central City branch of S.T.A.R. Labs went wrong in the Flash episode “Cause and Effect.” The result – other than one of those marking time episodes that crop up when the season has three more episodes but the season-long arc only has two episodes worth of story – Barry (The Flash) Allen got amnesia. It also resulted in the world’s most unnecessary SPOILER WARNING.

By the end of “Cause and Effect” Barry got his memory back. And if you didn’t want to know that, you should have stopped reading two sentences ago.

The A plot of “Cause and Effect” doesn’t concern us now. (It didn’t even concern me while I was watching the episode. I knew Barry’s amnesia would be more temporary than a henna tattoo in a car wash.) It was the B plot that prompted me to get anal-retentive and anal-lytical.

There was this pyromaniac named Lucius Coolidge AKA the Heat Monger, which is a silly name. Mongers sell things. Heat Monger set fires for free so he was actually giving heat away. Coolidge was caught largely because of the forensic investigation of Barry Allen. Unfortunately, some judge had a hole in his schedule and unilaterally moved Coolidge’s probable cause hearing up to that afternoon on the very day that Barry Allen, unlike Cats, had no memory.

Without his memory, Barry couldn’t testify. Well, he could testify, but he wouldn’t be able to say anything more useful than my one-year-old granddaughter could. And he wouldn’t be nearly as cute saying it. If Barry didn’t testify, the judge would find there was no probable cause to bind Coolidge over for trial and dismiss the cause. Coolidge would go free.

Team Flash gave Barry a pair of glasses equipped with a heads up display in the lenses and warned him not to let them get wet. Barry took the witness stand while his supervisor, Julian Albert, sat in the courtroom. Julian typed the answers to the DA’s questions on his laptop which were transmitted to the lenses on Barry’s glasses so Barry could read them in court.

If I said that the scene then played out exactly as anyone could have predicted, I’d be selling the word “exactly” short. Julian used emojis which Barry read out loud. Julian typed too fast so Barry had to tell him to slow down. Barry started to sweat and shorted out the glasses. Barry couldn’t continue testifying and the judge dismissed the case. Coolidge was released.

All in all, a three-minute scene played for comedy relief – it’s funny because Barry perpetrated a fraud upon the court – that ended with a dangerous sociopath being released. Don’t worry about the sociopath, he celebrated his victory by setting fire to an office building in front of eye witnesses who identified him for the police. Worry about that preliminary cause hearing. It may not have been funny like the show intended, but it was laughable.

Did the DA never consider asking the judge for a continuance, because the key prosecution witness was ill and not able to testify? After all, the judge created the problem by unilaterally rescheduling the PC hearing for later that day just because he had a hole in his schedule. (Note: judges don’t normally do things like that because it doesn’t provide the parties with adequate notice to prepare for the hearing.) Heaven forbid that the judge use his free afternoon to read the motions filed in the other cases before him or an article on how to avoid judicial intemperance.

And if the judge denied the continuance? There’s still a solution that’s a lot simpler than creating makeshift and volatile Google glasses. Have Julian Albert testify, for crying out loud!

Julian was Barry’s supervisor in the Central City CSI division. He would have overseen Barry’s work. He would have been familiar with Coolidge’s file. He could have testified with as much authority as Barry.

But if Julian was testifying based on Barry’s notes, wouldn’t Julian’s testimony have been inadmissable hearsay? No. Barry’s test results were records kept in the ordinary course of business. As such, they fell under the business records exception to the hearsay rule; one of the many hearsay exceptions. As long as Julian authenticated the notes, he could have testified about them.

But what about Coolidge’s ability to cross-examine Barry, the person who performed the tests? Wouldn’t having Julian testify instead of Barry deny Coolidge his right of confrontation?

Not according to the case law.

In Crawford v. Washington https://supreme.justia.com/cases/federal/us/541/36/, the U.S. Supreme Court held that admitting out-of-court statements that fell under one of the hearsay exceptions violated the defendant’s right to confrontation, if the statements were “testimonial” in nature. If the statements were not testimonial, then standard hearsay rules would apply. If the statements were testimonial, then the Sixth Amendment superceded the hearsay rules and precluded admission.

The Crawford case also said that business records were not testimonial. So having Julian testify wouldn’t have violated Coolidge’s Sixth Amendment rights. Moreover, Coolidge’s attorney could cross-examine Julian as to the procedures that were performed, the test results, and Julian’s expert opinion as to what the business records meant. Coolidge would have been able to exercise his right of confrontation, so no harm.

Anyway, that’s what the case law holds. See how simple it is? Julian testifies and Coolidge is bound over.

Here’s the thing about all that case law, I think it’s wrong. I think its reasoning is flawed and it’s conclusion incorrect. Doesn’t matter. No matter how much I might not like it – and I don’t like it a lot – it’s still the law. And I can’t ignore the law no matter how much it would suit my needs.

And here’s the other thing about that case law; no matter how much it might have suited the show’s needs, The Flash can’t ignore it either.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #411

JEFF SPENCER GIFTS US WITH THIS GEM

This week I have something old. Next time I’ll have something new. I’m aged enough that I might be living on borrowed time. But I’m not blue. Because I’m not writing about that which shall remain nameless but which rhymes with drivel bore pooh.

I was watching an old episode of 77 Sunset Strip– there’s no other kind – called “Mr. Goldilocks.” It was a typical episode; private eye’s on a case that he manages to solve in 60 minutes – of 40, if you zap through the commercials on your DVR. This week PI Jeff Spencer was trying to recover some jewels which had been stolen while they were being transported from a Palm Springs show back to Los Angeles. Spencer tracked the thief, Abern Wills, into the desert and got shot in the arm for his troubles. Which was just the beginning of his troubles.

The wounded Jeff stumbled through the desert until he chanced upon the cabin of Luther and Willie Lee Hanks, a grizzled father and dim-witted son who were looking for a lost gold mine and were just a burro shy of hitting the prospector cliché trifecta. Luther’s daughter, Polly, used a first aid kit to treat Jeff’s wound. Then she promised that when she got home, she’d call Jeff’s partners at 77 Sunset Strip to come and get him, because, unlike the cabin, her house had a phone.

Yes, I said “her house.” See, Polly didn’t live with her father. She was married and lived with her husband; you guessed it Abern Wills. She had no intention of calling Jeff’s partners there on the Sunset Strip. Instead, she and Abern planned on going to the Hanks’ cabin the next day, after the Hanks resumed their search for the lost mine, and kill Jeff, so they could enjoy the proceeds of Abern’s jewel theft.

What they didn’t reckon on was that Luther, like most proud papas, had a picture of Polly’s wedding in his cabin; a picture Jeff saw. Jeff recognized Polly’s husband as the jewel thief and realized he had been set up. So, when Polly and Abern returned, Jeff was hiding under the cabin. Polly stayed at the cabin, while Abern walked into the desert to look for Jeff.

After Abern left, Jeff tried to get to Polly’s car to escape, but she shot at Jeff and he stopped. Then Polly held Jeff at gunpoint. She intended to keep Jeff prisoner until Abern returned and killed him, but she only kept him until he escaped and really did flee into the desert. Abern went after him.

Jeff wandered around the desert; well not for forty days and forty nights. Not even for forty minutes, even if you didn’t speed through the commercials on your DVR. But he did wander around long enough to start talking to himself. Then start talking to the vultures, because, if he was talking to them and not himself, he wasn’t crazy; which is kind of a self-defeating distinction. He also wandered around long enough for one night to pass and for Polly to bring Abern a dinner of cold chicken and some more water.

The next day, Abern caught up with Jeff. They fought. Due to his weakened state, Jeff lost. Then, as Abern was talking toward Jeff to kill him, Abern troped and fell down the shaft of the lost gold mine to his death. (And who didn’t see that coming. This episode had more Chekhov’s guns than that Star Trek episode where Kirk, Chekov, and crew relived the gunfight at the O.K. Corral.)

Jeff went back to Luther’s cabin and told the prospectors he had to take Polly in for attempted murder, but not where the lost mine was. (Seems a trite and true dust storm blew up, disorienting Jeff and preventing him from marking where the mine was.) Luther wanted to help his daughter so he gave Polly a gun and had her shoot the arms off a cactus to prove she was a crack shot. If she had wanted to kill Jeff, she would have. She was shooting to scare not to kill, so it wasn’t attempted murder. Jeff promised he would mention this to the judge, which, Jeff being an honorable 50s private investigator hero, I’m sure he did. After which, the judge…

…sentenced Polly to several years in prison for attempted murder. Not to mention conspiracy to commit murder and kidnap. See, it doesn’t matter that Polly might not have been trying to kill Jeff when she shot at him, she was still guilty of attempted murder.

What Polly intended doesn’t matter, because what Abern intended was more than enough to convict her. Abern followed Jeff into the desert and shot at him a few times – and Abern was shooting to kill, he was just a member of that hoary villain cliché, the gang who couldn’t shoot straight. Then Abern was about to beat Jeff to death but forgot to mind his step then mined his step. So Abern did commit the crime of attempted murder.

Polly helped him do this by, if nothing else, bringing him that cold chicken dinner and extra water so he could keep looking for Jeff to kill him. Which means Polly was an aider and abettor to Abern’s attempted murder. She was just as guilty of the attempted murder as Abern was.

It didn’t even matter that Abern wasn’t convicted of attempted murder; what with him being dead and all, that would have been overkill. Under the aider and abettor law, an accomplice can be convicted of aiding and abetting the principal offender’s crime, even if the principal offender is never convicted. You might say Polly’s conviction and sentence was a fate accomplice.

At the story’s end, Luther and Willie Lee went back to looking for the lost gold mine. Jeff went back to his offices at 77 Sunset Strip and his next adventure. And Polly went to prison. Where, I understand, she asked that her cellmate be a woman who became a prostitute to raise money to buy drugs. Because – and all together now – Polly wants a crack whore.

The Law Is A Ass #410: Captain Marvel and I Indulge in Conspiracy Theories

I’ve never lied to you.

Last time I said I had no more Civil War II columns and here I am writing about Jessica Jones #6 and things that wouldn’t have happened without Civil War II happening. But writing about things that happened after Civil War II ended is not a Civil War II column. It’s a Civil War II aftermath column. So I didn’t lie. Technically.

And now that I’ve cleared my conscience, let’s get this over with.

Alison Green was one of the people that the Inhuman Ulysses Cain predicted was going to commit crimes. Which made her one of the people Captain Marvel arrested before they committed the crimes and threw into a preventative justice prison so that they couldn’t commit their future crimes. Unfortunately, Alison wasn’t going to commit a crime. Ulysses was as wrong about Allison as that soothsayer was about the Powerball numbers she gave me last week. And Captain Marvel was even more wrong to arrest Alison than she had been in arresting all the other people she was wrong to arrest.

Alison created an anti-super hero organization. Captain Marvel and Jessica Jones tricked Alison into believing Jessica Jones was disgraced so Alison would recruit Jessica into the organization. Which Alison did and got stung worse than Doyle Lonnegan after stepping on a hornet’s nest. Jessica helped Alison capture Captain Marvel, Then, when Alison thought she had the upper hand, she showed she had what it takes to be a comic-book villain; she went into full-blown monologue mode and revealed her master plan. Which was to kill the Champions in a way that would foster a huge anti-hero backlash and end the age of the super hero forever. (End the age of the super hero? I don’t think Disney pictures would like that very much.)

Captain Marvel said Alison’s Champions plan added conspiracy to commit murder to her other crimes. But I don’t know. See, the crime of conspiracy to commit a crime entails more than conspiring to commit a crime. As the details about Alison’s plan were sketchier than an Artist’s Alley commission, I’m not sure there’s enough there for a conspiracy charge.

Conspiracy has three basic elements. First, two or more people have to be involved. Second, they have plan together to commit a crime. Third, at least one of them has to commit some overt act in furtherance of the conspiracy.

Let’s take those one at a time. If only one person is involved, there’s no conspiracy. No one can conspire with him or herself. Even if all three faces of Eve agreed to commit the crime, that’s not a conspiracy because there’s only one Eve. And conspiracy is all about Eve and someone else planning a crime.

Second, the two or more people have to create a plan to commit a crime. They don’t all have to commit the crime. Even if only person commits the actual crime, as long as two or more of people planned the crime, they’d all be guilty of conspiracy. That’s two defendants for the price of one, what a bargain!

Third, at least one of the conspirators has to commit some overt act in furtherance of the conspiracy. If Bonnie and Clyde create a plan to rob the Commerce Bank in Beverly Hills then go to sleep so they can get a fresh start in the morning, they have not committed a conspiracy yet. However as soon as they do something else – drive to the bank, steal the getaway car, kidnap Sonny Drysdale  to use as leverage against the bank president – they’ve completed the crime of conspiracy. It doesn’t even matter that they haven’t actually robbed the bank yet. By making the plan and then doing an overt act in furtherance of the plan they committed conspiracy, even if they never accomplish their ultimate objective.

So did Alison conspire to commit murder? Well, first we’d have to know did Alison make her plan to kill the Champions with one or more people? And, if so, with which people? If the only person Alison made her plans with was Jennifer Jones, then there can be no conspiracy. Jennifer wasn’t really part of the conspiracy, she was an undercover government operative. Traditionally, when the only other party to a conspiracy is a government operative, then two or more people aren’t agreeing to commit a crime. One plans to commit the crime, the other is just pretending as part of the undercover sting and we’re back to the a person can’t conspire with him or herself rule. Recently, some states and the Model Penal Code have started to move away from this position and allow conspiracy convictions when the co-conspirators are government agents, because the criminal thinks he or she has entered a conspiracy.

So if New York allows conspiracies with undercover police of if Alison made her plans with anyone in her organization other than Jessica, then the first element of the conspiracy is met. She probably did, but we weren’t given enough information in the story to know this for sure.

Assuming that Alison and others did plan to kill the Champions, the second element is also met. I trust that I don’t have to convince you that murder is a crime. I think I have to convince some writers of that, based on the way they have their heroes kill. But you, I shouldn’t have to convince. As murder is a crime, making plans with other people to commit a murder would hit conspiracy’s second element.

Third element, did any of the conspirators commit any overt act in furtherance of the plan to kill the Champions? We don’t know. We do know they were supposed to carry out the plan later that same night, so it’s likely that somebody had done something, because time was a wastin’ but the law doesn’t allow us to assume the existence of an element. So I can’t say for sure that anyone did an overt act or that Alison is guilty of conspiracy.

Sure Captain Marvel said Alison committed conspiracy. But let’s face it, Captain Marvel’s grasp of the law is about as firm as if she were noodling for mercury. While wearing a catcher’s mitt on both hands.

Now while I may not be able to tell you whether Alison’s guilty of conspiracy to commit murder, I can tell you this; I just checked my pile of write-about-these-someday comics and there isn’t one of them that’s connected to Civil War II. So I should be done with it. Unless Marvel’s got some new story coming up that connects back to Civil War II. And I don’t think they do. Civil War II is so last year. This year Marvel’s too busy secreting Secret Empire stories.