Tagged: Aiding and Abetting

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #397


I probably shouldn’t do this. But you know me. Even if you don’t, I know me. Know me well enough to know that, it doesn’t matter whether I should do it. Like the Mean Widdle Kid, I dood it.

(Boy, there’s a joke that you either won’t get or won’t want to admit you’re old enough to get.)

The Simpsons is a comedy show, satirical and not to be taken as an accurate portrayal of anything. The same applies to the comic books based on The Simpsons. Even if The Simpsons were supposed to be as realistic as a Rembrandt, their stories take place in Springfield, whose chief of police is Clancy Wiggum. Let’s face it, if Clancy’s the chief law-enforcement officer, then the laws he’s enforcing have probably been simplified so he can understand them. The Springfield law defining arson is probably, “Fire bad.”

So I can forgive the legal error contained in the story “In the Swim” from Simpsons Illustrated #24. But I can’t forget it. And I’m simply not going to not write about it. Hence what comes next.

In the story, Mr. Burns has invited all the employees of the Springfield nuclear power plant on a Family Fun Cruise. Turns out, however, that Burns was only throwing the party as a distraction while he illegally dumped the plant’s nuclear waste into the Springfield Channel. When Lisa Simpson pointed this out, Burns advised her not to tell anyone. “Remember, in the eyes of the law, everyone on this boat is an accomplice.”

And that’s all the set-up you need or get. Now it’s on to the meatier part of the column: the legal analysis.

So in the eyes of the law, would everyone on the boat be an accomplice to Mr. Burns’ illegal dumping?


Okay, that analysis wasn’t so much meat as it was pink slime. Let’s see if I can’t get the meat content up to that of two all-beef patties hold the special sauce, lettuce, cheese, pickles, onions, and the sesame seed bun.

In the United States, the concept of aiding and abetting is fairly simple. Anyone who actually commits a crime is guilty as the principal offender. Anyone who aids, abets, counsels, commands, induces or procures its commission, is an aider and abettor (or accomplice) and is punishable as if that person were also a principal offender.

If I, for example, agree to drive the getaway car while you rob a liquor store, I’m helping you and am as guilty as you of the robbery, even though I didn’t actually rob it. See, that’s fairly simple. But it’s only half a beef patty. Let’s add more.

The aiding and abetting statutes also require that the accomplice be acting with the same kind of culpability as the principal offender. In other words, the accomplice has to know the principal offender is committing a crime and wants to help the principal offender commit it. So if I help you, but I don’t know you’re committing a crime, I’m not guilty as an accomplice.

In our previous example, if you ask me to pick you up in my car outside a liquor store, but I don’t know you’re robbing the store, I’m not aiding and abbetting your crime, even if I do drive your getaway car.

That principle applied to our story for a time. At first, no one knew what Mr. Burns was up to. And because they didn’t know what he was doing, they weren’t accomplices. Then Lisa Simpson had to spill the beans and tell everyone. So now that they do know what he was doing, are they accomplices to his dumping?

Ah another layer to the analysis. A little more beef. But the answer is the same as before. Even though everyone on the boat knew what Mr. Burns was doing after Lisa shot off her big mouth, no one other than Waylon Smithers. did anything to help him. They weren’t aiders and abettors, because they didn’t aid him.

The law actually has a name for this principle. We call it the Mere Presence Rule.

The Mere Presence Rule is kind of an oddity in the law, because it means exactly what it’s name implies. The rule dictates that if you are merely present when a crime is being committed, you are not guilty as an aider and abettor.

If you’re standing on a corner when that hypothetical criminal from a few paragraphs back robbed the liquor story, you’re not guilty as an aider and abettor, even if you didn’t do anything to stop him. As long as you didn’t do anything to help or encourage the criminal, you are not an aider and abettor.

If you were a passenger in the car while the robber went into the liquor store and then came out and drove away but did nothing to help him, you’re not guilty as an aider and abettor. Not even if you knew in advance that the other person was going to rob the liquor store. As long as you didn’t assist or encourage the robber, you’re not an aider and abettor.

Sure the law might question your decision not to get out of the car and tell someone what was going on when it stopped. (The law might also question your choice of friends. I mean, this friend of yours has robbed how many hypothetical liquor stores now?) However, the law does not require you to do anything to stop the crime; not even telling somebody else that it’s happening. The law only requires that you don’t do anything that actively assists or encourages the criminal.

Getting back to the Simpsons story, all of the nuclear power plant employees were merely present when Mr. Burns illegally dumped nuclear waste in the Springfield Canal. They didn’t do anything to encourage or assist him. They were too busy playing Limbo and drinking some yellow liquid with umbrellas in them. So Mr. Burns and the story were wrong to say that everyone on the boat was an accomplice to his illegal dumping.

Let’s face it, to be an accomplice Homer Simpson would actually have had to do something. And I don’t think he’s got any accomplice-ments to his credit.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #336: The Practice Makes Imperfect

Lara-Flynn-Boyle-image-lara-flynn-boyle-36103463-1466-2000I don’t care what the old saying says, in this case The Practice  makes imperfect.

David E. Kelly, the creator, producer and head writer of such shows as Picket Fences, Ally McBeal, and one – mercifully – unsold Wonder Woman  pilot was a practicing attorney in Boston, before he moved to Hollywood to become the creator, producer and head writer of such shows as Picket Fences and Ally McBeal. An interesting choice leaving the law for Hollywood producer. It’s one of the few career moves that wouldn’t be regarded as a step up.

One of Kelly’s biggest TV successes was The Practice, a show about a struggling criminal-defense and plaintiff’s personal injury law firm in Boston It was a show firmly rooted in Kelly’s own past, and a show which won both the Emmy and the Golden Globes award for best drama. By all accounts, it was a high-quality show.

I couldn’t watch it.

I tried, but I just couldn’t. Kelly seemed to forget his lawyer past in The Practice, and, as a result, we were condemned because he couldn’t repeat it. The show frequently opted for the highly dramatic in its situations and portrayals of the law, instead of the legally accurate. The Practice got the law so wrong, that, for me, it was more infuriating than entertaining.

Case in point: the January 5, 1998 episode “Line of Duty.” Bobby Donnell, the lead lawyer of the series played by Dylan McDermott, was sleeping with the enemy, in this case in the case in point, said enemy was prosecuting attorney Helen Gamble played by Laura Flynn Boyle. One night, while sleeping at Helen’s, Bobby learned the police were about to raid the drug house of a major drug dealer and arrest him. Problem for Bobby was said drug dealer was Bobby’s client. Bobby called his client to warn him of the impending raid and told the client to clear out and not be arrested. Then the problem for Bobby became the client decided to fight it out instead of clearing out and in the ensuing gun battle between drug dealers and police, a cop was killed.

So, ultimately the problem for Bobby was he found himself being prosecuted for aiding and abetting the murder of a cop. Surprisingly enough, we in the legal profession actually have a term for when this sort of thing happens; it’s, “Oh, this is not good.”

Aiding and abetting is a crime legislatures enact to keep people from helping criminals. It says that if you help a criminal commit a crime, you’re as guilty as the criminal who actually committed the act, even if you didn’t commit it yourself. In Massachusetts General Law Chapter 274 § 3, they call it being an accessory before the fact, but it’s the same thing. In Bobby’s case, the prosecution claimed that by warning his client of the impending arrest, Bobby helped him resist arrest so was equally responsible for the murders which occurred during the arrest.

Bobby had a normal defense he could have used. The law specifically says, “Whoever counsels, hires or otherwise procures a felony to be committed.” Bobby did none of these. He didn’t want his client to resist arrest or kill any police officers. All he wanted his client to do was clear out of his house so that he wouldn’t be arrested. Had he argued to the jury that he didn’t counsel his client to resist arrest or kill cops, a perfectly appropriate and legal defense, he probably would have been acquitted.

But Bobby didn’t argue the appropriate, even legal, defense to his case. That wouldn’t have be dramatic. Instead Bobby argued that under the Code of Professional Responsibility he had a duty to represent his client zealously, so he had an ethical obligation to inform his client of the impending raid. Bobby argued what he did wasn’t illegal but sanctioned by the law.

Guess what? It ain’t.

Oh, it’s true that Canon 7 of the Code of Professional Responsibility says, “A lawyer should represent a client zealously within the bounds of the law.” It is also true that zealous representation would include informing a client of things that could be injurious to the client. But there’s a catch in this legal obligation. It’s those pesky words, “within the bounds of the law.”

What that means is simple, a lawyer can’t break the law under normal circumstances and also can’t do it while representing a client. Indeed, the Code of Professional Responsibility specifically says a lawyer cannot knowingly engage in illegal conduct while representing a client. So, if warning his client about the impending arrest was be illegal, then Bobby had no ethical obligation to warn the client, because the Rules of Professional Responsibility require that a lawyer act within the boundaries of the law.

Would warning a client of an impending arrest be against the law? Do orcas poop penguins?

Every jurisdiction I know of has some sort of obstruction of justice law on its books. As I know of the jurisdiction of Massachusetts, it safe to assume Massachusetts has such a law. However, it’s even safer to check the Massachusetts General Laws to be sure. So I did. Chapter 274 § 4 of the Massachusetts General Laws, the accessories after the fact law, makes it a crime for someone to assist a person who has committed a felony, “with the intent that he shall avoid or escape … arrest.” Which brings us back to our problem child, Bobby.

He warned a client, not just a client but a felon, that said client was about to be arrested so that the felon could escape arrest. That’s a violation of the accessory after the fact law. So, under the Code of Professional Responsibility dictate that a lawyer act within the boundaries of the law, the fact that warning his client of an impending arrest would break the law obviated any duty Bobby thought he had to warn his client.

Still, Bobby made his argument that he had an ethical obligation to tell his client he was about to be busted. Worse the judge presiding over the case bought the argument and dismissed the charges against Bobby. Not surprising from a dramatic point of view, had Bobby been convicted, the show about his struggles to be a successful personal injury attorney would have ended. It’s kind of hard to chase ambulances within the confines of a 6 by 8 prison cell. But it was totally inaccurate from a legal point of view.

The outcome of Bobby’s case brings up another question. If Bobby didn’t know he had no ethical obligation to warn his client and the judge didn’t know Bobby’s argument was flawed, then what’s the deal with the Massachusetts legal system? Are Bostonian lawyers and judges participating in a totally different kind of Boston tea party? Maybe. That could be the reason judges and lawyers are always so high and mighty.

Author’s Note: Because of the Thanksgiving work week, which significantly shortened my work week this week, I took a column I once wrote as part of an introduction to a “The Law Is a Ass” book I was pitching back in the late 90s, edited it to bring it up to date and made it a stand alone column. But that’s why you’re suddenly getting a column about a 1998 TV show.

The Law Is A Ass


Batman_Vol_2-23.2_Cover-1_TeaserWell, there’s no putting it off any longer. I might as well get the unpleasant business out of the way right up front.


 I want to discuss the legal aspects of Detective Comics: Futures End # 1 and there is literally no way I can proceed without discussing its ending. So if you haven’t read Detective Comics: Futures End # 1 and you don’t want to know how it ends, stop reading now. Come back after you have read it. If, on the other hand, you have read the comic in question or you simply don’t care that I’m about to give away the ending, then continue reading.

This has been a test of the Emergency SPOILER WARNING! System. We now return you to your regularly scheduled column already in progress.

The story opened five years from now – remember, the DC books coming out in September this year all tie into the weekly Future’s End http://dc.wikia.com/wiki/Futures_End series and take place five years in the future – with a scene of The Batman flying through Gotham City. Now it’s not unusual that a Detective Comics story should open with the Batman. Many of them do. What is unusual is that Batman was flying toward a large skyscraper with a huge question mark insignia on the top floor.

Clearly, it was the headquarters of The Riddler. But why would a master criminal have such an obvious and ostentatious headquarters?

It seems that sometime in the five years between now and five years from now when some futures are going to end, Batman helped broker a full pardon for the Riddler. How? I don’t know. Why? I still don’t know. (Seriously, did you think that between writing those two sentences, I went back to re-read the story, and saw something I missed the first time?) The story didn’t reveal either how or why the Riddler was pardoned. It’s one of those great mysteries we may find the answer to in the next five years. Like which came first, the chicken or the egg? Or who’s on first?

Batman needed Riddler’s help. Seven days earlier, Julian (the Calendar Man) Day broke free of his cell on Arkham Island, the new asylum of the criminally insane that was – Will be? – built in Gotham Harbor. Julian was holding several of the Arkham staff hostage.

Julian had one demand and if it wasn’t met, he was going to duplicate the city-wide blackout that the Riddler had cast over Gotham City back in the “Batman: Zero Year” story arc. Excuse me but what? When they built this new asylum for the criminally insane, did they build it over Gotham City’s main fuse box?

Because Calendar Man had hostages, Gotham City couldn’t bomb Arkham Island. And the police couldn’t storm the island because they couldn’t get past the security devices that Riddler built into it. (Yes, sometime in those event-filled five years, the Riddler, a former inmate in Arkham Asylum, designed the new version of Arkham Asylum and all of its security measures. I hope it was good therapy for Riddler, because it sure don’t make much sense otherwise.) So Batman came to Riddler so that Riddler could help Batman get past Arkham Island’s security.

While Batman and Riddler had fun stormin’ da castle, Batman told Riddler what Calendar Man’s one demand was. Several years ago, before he became Calendar Man and was still just Julian Day, Julian’s wife died. Julian started drinking, lost his job, and became muscle for the Gotham crime boss The Squid. He also physically abused his son when he got drunk. So in Detective Comics Annual v. 2 # 3, the Batman defeated all the bad guys Julian was working with, foiled their plans, and placed Julian’s son in a shelter for battered women and children. Now Julian demanded that the man who destroyed his family be brought to him or he would black out Gotham. Riddler expressed some regret at what Batman is doing. After all, Calendar Man and his thugs were going to kill Batman and Batman was the only worthy adversary Riddler ever encountered.

So, cutting to the chase – of whatever it is I’m cutting to, as this story didn’t actually have a chase scene – Batman and Riddler got past the security devices. Then Batman had an obligatory fight scene with Calendar Man’s henchmen, because there hadn’t been a fight scene yet and it was obligatory.

When Calendar Man appeared, Batman explained that Riddler helped Batman get past the security devices, so that they could deliver to Calendar Man the man responsible for destroying his family. Then Calendar Man ordered his men to take Riddler away.

Riddler asked why they were taking him, it was Batman who destroyed his family. Calendar Man said he was a rotten single parent and deserved to have his son taken away. His wife held his family together and it fell apart after her death. His wife’s death is what destroyed his family and she died in Riddler’s Zero Year blackout. Riddler was the man who destroyed his family.

As Calendar Man and his goons dragged the Riddler off to Crom knows what, Batman smiled a smug and oh-so–pleased-with-himself smile and said, “Riddle me this. How do you trap the untrappable? You get them to trap themselves.”

The end of the story and the beginning of the meat of this column, so I guess I should have included a Vegetarian Warning, too. I don’t know what Calendar Man and his goons plan to do with Riddler. Riddler thought they were going to kill and they probably are. But kill Riddler, cut him, or force him to watch Gigli; any way you slice it – or the Riddler – it’s going to be bad for the Riddler. And the Batman delivered Riddler to these men knowing something what was going to happen.

Which makes the Batman a murderer, or assaulter, or a torturer depending on what Calendar Man and his goons do to the Riddler. Let’s go with murder, because I don’t want to keep typing all the possibilities.

How so? Well the New Jersey Code of Criminal Justice, which defines the crimes for that state, has a statute – N.J.S.A. 2C:2-6 – which defines the crime of Complicity. In New Jersey a person is an accomplice to a crime, and is as guilty as the principal offender, when he or she has the intention of facilitating the offense and aids the principal offender commit the offense. You may know this crime better as name aiding and abetting, which is what it’s called in some other states. But a crime by any other name is still illegal.

If the Batman helped Calendar Man murder the Riddler and if the Batman intended to help Calendar commit that crime, then he’s as guilty of the murder as Calendar Man is. The getaway driver who takes bank robbers away from a bank robbery – or to a bank robbery – is as guilty as the actual people who actually rob the bank, because he helped them commit it. In the same way, the person who brings the victim to some murderers and who knows that they will murder the victim once they get him is as guilty of the murder as the murderers who actually commit the murder. Why? Because he helped them commit the murder by bringing the victim to them, that’s why.

Now I know that this story takes place some five years in the future, but if you think in those intervening five years someone repealed the complicity statute, you’re delusional. They may have been dumb enough to let an ex-inmate of an asylum for the criminally insane design the new asylum for the criminally insane, They may even have been dumb enough to build the new asylum for the criminal insane over the main fuse box of a major city. But repeal the complicity law at a time when the prevailing attitude on crime is you’ve got to be tougher than utility beef? No one’s that dumb.

The Law Is A Ass


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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