Tagged: Bob Ingersoll

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #404

THE SHOW WAS DUMB NO DOUBT ABOUT IT

I feel like staying far away from Civil War II this week. How far away? I’m not even writing about comic books. That far.

Doubt was another attempt to do a Shonda Rhimes style show without Shonda Rhimes. CBS tried to hedge its bets by having former Grey’s Anatomy Katherine Heigl headline Doubt. Did that help? Even less than her presence helped in her last show, State of Affairs. State of Affairs lasted 13 episodes. CBS pulled Doubt after only two episodes. Which is one more episode than I was able to last. Doubt was such a huge turkey it could have fed the Eight is Enough brood and still have had enough to give the Brady Bunch leftovers. But I digest.

Doubt told the story of Sadie Ellis, a high-priced New York City defense attorney who was defending Dr. William Brennan on a first-degree murder charge. The show was, as TV flack hacks like to put it, “ripped from the headlines.”

See, Dr. Brennan was a doctor, a pilot, and a the son of a US senator, who was accused of murdering his 16-year-old girlfriend back in 1993. So, this story is a mash-up of John F. Kennedy, Jr. (son of a senator and a pilot) and Michael Skakel (nephew of a different Kennedy senator who was accused of the 1975 murder of his 15-year-old girlfriend and convicted in 2002). The writers had to go to the library achieves to find whatever newspapers they ripped this15-year-old headline from. I understand that if Doubt had made it to a second season, instead of just a second episode, it was going to do a “ripped from the headlines” story based on Sacco and Vanzetti.

Dr. Brennan’s girlfriend was murdered back in 1993. We learned in a pretrial hearing that Dr. Brennan confessed to the murder to another student while they were in boarding school. And that the murder weapon disappeared in 2006 and hasn’t been found.

Ms. Ellis and her team thought their best chance to win the case was to suppress the statement. If that was their best shot, Dr. Brennan better start getting measured for his fashionable “The New Black” jumpsuit. Because the odds of them winning the suppression motion were even worse than the odds of my winning the Mega Millions and the Powerball. Three times.

The Fifth Amendment says that no one can be compelled to incriminate him or herself. Confessions are suppressed when they are obtained in violation this amendment because they are in some way coerced. All courts hold that if the government or one of its agents coerce the confession in some way it must be suppressed. That doesn’t apply here. Brennan gave his confession to another student, not the police.

Courts are split on whether a confession that was coerced by a private citizen should be suppressed. Some say any coerced confession should be suppressed. Others say only a confession that was coerced by the government should be suppressed. But, again, that doesn’t apply here.

Dr. Brennan’s statement was one that he gave voluntarily to another student while they were attending boarding school. There was no hint of coercion. And there is no split among the courts that a confession what was not coerced should not be suppressed.

Ms. Ellis could also have tried to suppress the evidence because it was a statement made by someone who was not in court and which is being offered to prove the truth of the matter asserted, i.e., that Dr. Brennan killed his girlfriend. You know, hearsay. Sadie didn’t even try that one.

When most states defined hearsay, the definition specifically excluded the statement of a party in the case that is contrary to the party’s position at trial — such as a confession by a defendant who pled not guilty would be. New York didn’t go that route. In New York, the statement of a party opponent is still hearsay. However, it is one of the exceptions to New York’s hearsay rule. So not hearsay or an exception to the hearsay rule, either way the confession would be admissible.

The judge quite correctly ruled that Dr. Brennan’s statement should not be suppressed. So the defense team’s best shot fired blanks. Then, just when things looked darkest for Dr. Brennan, they got worse. The police found the murder weapon.

Seems back in 2006 there was a fire in the 93rd Precinct and the evidence there was moved to the Staten Island police warehouse. Let me get this straight; the evidence was lost because the police forgot where they put it? That’s dubious at best and this show was never at its best.

Police have to keep track of what’s called the chain of custody on all evidence. They have to know where evidence is at all times so that when it’s offered in a trial, the police can establish that the evidence is actually what it purports to be and hasn’t been tampered with. Toward this end, evidence is kept in secure lockers and has to be signed out when someone wants to examine it. That way there’s a paper trial detailing where the evidence was at all times and who had it.

So when the police moved the evidence from the 93rd Precinct to the Staten Island warehouse, they would have made records of the move so that the evidence’s chain of custody could be maintained. The police would have known at all times where the murder weapon was and would have been able to put their hands on it anytime they wanted it.

Sadie tried to exclude the murder weapon. She argued to the judge that its chain of custody had been broken when it was lost in the warehouse. The prosecutor argued that a chain of custody breach goes to weight not admissibility. Wrong!

If the defense can establish that there was a break in the evidentiary chain of custody so that the evidence might not be what it purports to be or might have been tampered with, that means that the evidence is not admissible. Chain of custody arguments go to admissibility, not weight. Any prosecutor would know that; except, perhaps, the one who didn’t think to look in the police warehouse that all the other stuff from the 93rd Precinct was moved to after the fire.

And that’s what happened in the first episode of Doubt. I can’t tell you what happened in the second because I, like most of America, didn’t watch it. One episode was bad enough. I can only suffer so much for my art.

The Law Is A Ass

Bob Ingersoll The Law Is A Ass #403

HAWKEYE’S TRIAL IS OFF THE MARKS, MAN

When is a murder not a murder? Give up? What say we find out.

It all started with Ulysses Cain. You remember Ulysses Cain, don’t you? Inhuman who can predict the future and caused the whole Civil War II imbroglio when Captain Marvel and Iron Man disagreed over how he should be used. Lord knows I remember him. In Civil War II #2, Ulysses predicted that Bruce Banner would become the Hulk again and go on a murderous rampage.

So in Civil War II #3, Captain Marvel, Iron Man, and more costumed heroes than you can shake a double-page spread at confronted Dr. Banner in his secret lab. You can probably guess from the fact that was only part three of a nine-part story, the confrontation didn’t go as planned.

While all the heroes except one were talking to Bruce outside his secret lab, the Beast went inside and hacked into Banner’s computers. He learned Banner was injecting “treated dead gamma cells” into himself. (Interesting biology note: a gamma cell is a cell in the pancreas that secretes pancreatic polypeptide. Somehow, I don’t think those would have had any inhibiting effect on the Hulk. I think Beast meant to say dead gamma-ray-irradiated cells, but he probably didn’t have enough space in the word balloon for all that.) When Maria Hill, director of S.H.I.E.L.D., heard that Dr. Banner was experimenting on himself, she placed him under arrest.

Which made Banner angry. And do we like Dr. Banner when he’s angry? Who know? No sooner had Banner raised his voice than an arrow struck him in the head. Killing him. (Civil War II is over-achieving. It’s met its “Someone Has To Die Or It’s Not An Official Cross-Over” quota twice now.) Then Hawkeye revealed himself as the shooter and gave himself up.

Hawkeye stood trial for murder; in a sequence that jumped back and forth in time between prosecution witnesses, defense witnesses, and flashbacks so often you’d think Quentin Tarantino was the court reporter. Hawkeye testified that Banner gave him a special arrowhead that Banner had designed; one that would kill the Hulk. Banner told Hawkeye, “If I ever Hulk out again, … I want you to use that.” Banner asked this of Hawkeye, because Hawkeye was one of the few people Banner knew who would be able to live with the choice.

Hawkeye also testified that his eyesight was more acute than most people’s eyesight. That’s what made him such a good archer. He saw Banner was agitated and that his eye flickered green. He knew Banner was about to Hulk out and shot the arrowhead. (Hawkeye saw a green flicker in Banner’s eye from his perch up in a tree that was more than one hundred yards from Banner? That isn’t just acute eyesight. That eyesight is better looking than a super-model.)

In Civil War II #4, the jury found Hawkeye not guilty. How did the jury reach that verdict and find Hawkeye’s murder not a murder? I think we can safely eliminate the persuasive powers of Henry Fonda. So what did sway the jury to vote not guilty? Let me count the ways.

One: the jurors believed Ulysses’s prediction that Banner was going to Hulk out and kill someone. So it found that Hawkeye acted in self-defense. Two: they could have found that because Banner asked Hawkeye to kill him it was a mercy killing. Three: they could have found that they didn’t care that Hawkeye was actually guilty, the world was better off without the Hulk and they weren’t going to punish Hawkeye for killing the Hulk. That last one would be what we call jury nullification; a jury finds the defendant not guilty despite the defendant’s actual guilt for some sympathy reason. Juries aren’t supposed to do that but some do. And when they do, it’s still a valid not guilty verdict even if the reason is invalid.

The jury could have found Hawkeye not guilty on any one of those theories. Or on any combination of those theories. Juries only have to be unanimous on their verdicts, not their reasons for the verdict. So if eight jurors believed self defense, three believed mercy killing, and one believed in jury nullification; it was still a valid verdict, because all twelve voted not guilty. Hell, a juror could even have found Hawkeye not guilty because the juror believed the costumes some artists forced Hawkeye to wear through the years was punishment enough.

So there you have it. When is a murder not a murder? When it’s self defense, a mercy killing, or a jury nullification. Of the fourth way, which is the way I think really applies here: a murder is also not a murder when the plot needs it not to be a murder.

The Law Is A Ass

The Law Is A Ass #402: CAPTAIN MARVEL’S EXCESSES ARE PREDICTABLE

“Bob, we need to talk.”

Those are normally not words I dread. I like a good conversation as well as the next guy and a good deal better, if the next guy happens to be Calvin Coolidge. But, as I studied the room full of people in front of me — family, friends, even editors — all trying desperately not to catch my eye, I knew this wasn’t going to be a good conversation.

“Is this an intervention?” I asked. I didn’t need an answer. Their expressions screamed: this is an intervention.

“We think you’re spending too much time on Civil War II.”

“I’m spending too much time on it. The series ran for nine extra-sized issues, plus eighty-eight or so tie-ins in other comics. I’ve seen beached whale carcases that were less bloated.

“That’s seventy-nine or so issues to tell one story! Did you know Stan and Jack produced the first Inhumans and the first Galactus stories in only seven issues of Fantastic Four? Combined!

“And you’re complaining about a measly two columns!”

“But aren’t you about to write a third one?”

“Well, yes. We have Captain Marvel vol 9 #8 to deal with.”

I actually heard a collective sigh of “What now?” rise from the room full of interventionists.

“Ulysses Cain, the Inhuman who can predict possible futures, made another one. A pulse of destructive energy was going to take out several blocks in Van Nuys, California. An explosion with an epicenter in the house of Stewart Cadwall, the former super villain named Thundersword.”

I looked up at a room full of stares as blank as the computer screen I had been staring at for hours. Many of the people here hadn’t even read the three — count ’em, three — comics from 1985 where Thundersword showed up. And as for the people in the room who had read those issues… Well, Thundersword was so obscure, I’m not even sure the people who wrote those comics remembered him.

“Stewart Cadwall was a failing Hollywood writer who became a super villain when the Beyonder imbued an award he won with powers. Cadwall used those powers to become Thundersword. He was captured sometime off-panel, made parole at some point, and hadn’t appeared since 1985. Until Ulysses sent Captain Marvel, Black Panther, and a cadre of SWAT police to Cadwall’s door. This was, as Captain Marvel described it, to bring Cadwall in, ‘by the book.’

“If, that is, the book is Mein Kampf.

“Captain Marvel’s team smashed in Cadwall’s door, searched his house, and found his old award. Cadwall had kept it, because it was the only thing he had to show he had ever been successful at something. Unbeknownst to him, the award was building up energy and was going to explode at some point.

“Yes, by keeping his former super-villain weapon, Cadwall was technically committing a parole violation. So, yes, Cadwall was guilty of something. But that still doesn’t justify Captain Marvel and her SWAT team breaking into Cadwall’s house and searching it without any warrant.

“At least, they never showed a warrant. But the prediction also said the explosion wouldn’t happen for several hours; plenty of time for Captain Marvel to obtain a warrant before going into Cadwall’s house. And as there was enough time for Captain Marvel to obtain a warrant, the Constitution required her to get one before she could enter or search a citizen’s house. If Captain Marvel acted without obtaining a warrant, she violated Cadwall’s constitutional rights and her team’s search and seizure was illegal.

“If they acted with a warrant, how did they get it? Would a prediction of a possible explosion give a judge enough probable cause that the judge could issue a search or an arrest warrant? I’m not sure it would.

“Anyway, Cadwall was arrested. But not to worry. In Captain Marvel vol 9 #10, another person stole Cadwall’s trophy from the evidence locker and used it to empower himself. When Cadwall helped Captain Marvel capture this new villain, she arranged for Cadwall’s parole violation to be dropped. She even let him keep his trophy. So it all went well for Stewart Cadwall.

“Which is more than we can say for Alison Green http://marvel.wikia.com/wiki/Alison_Green.”

I wasn’t surprised by the blank stares from everyone in the room this time. Alison Green wasn’t even an obscure villain everyone had a right to forget, she had never appeared before.

“In Civil War II #4”

“See, that’s why we’re worried about you, Bob, you’re losing track of things. In your last column you talked about Civil War II # 2. Now you’re talking about # 4. What happened to Civil War II # 3?”

“Nothing happened to it. It came out before # 4, like it was supposed to. Oh, you mean what happened in # 3? Don’t worry, I’ll get to that.

“But in issue 4, Captain Marvel arrested Alison Green, a finance banker, because Ulysses predicted she was secretly a Hydra agent and was going to detonate a black hole bomb in the New York Stock Exchange. Captain Marvel reasoned this gave her the authority to hold Alison Green indefinitely so she could force a confession out of Alison.

“While Alison was in custody, S.H.I.E.L.D. investigated her. It found no ties between Alison and any terrorist organizations. Even the psychological screening S.H.I.E.L.D. put her through didn’t turn up and any connection to any suspicious organization. Nevertheless, Captain Marvel held Alison even though there was nothing suspicious about Alison.

“Well, Alison liked karaoke. That makes her suspicious in my book. But not in any law book. The law books might actually question whether Captain Marvel had the authority to hold Alison without charge forever.

“I’m not fully conversant with all of the provisions of the PATRIOT Act. I know it does say the government can hold an alien indefinitely, if it believes he or she may cause an act of terrorism, but I’ve never heard of a similar provision that applies to American citizens like Ms. Green.

“And, guess what? Turns out the prediction was wrong. Alison Green wasn’t a Hydra agent. Turns out the closest Ms. Green got to Hydra was a preference for Hydrox cookies. But she wasn’t any sort of a villain.

“Then.

“Now, Alison wanted revenge against Captain Marvel, so she’s taken to hiring super villains to cause problems for Captain Marvel and her friends. So, congrats, Captain Marvel, if the prediction about Alison does come true, it’s because you and your preemptive-strike predictive justice task force pushed her into becoming a Hydra agent.

“And that’s all I really had to say about Civil War II this week.”

“All? But you said you’d get to Civil War II # 3.”

“And I will get to it. Next week.”

Next week. Hey, maybe an intervention wasn’t such a bad idea after all.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #400

IRON MAN FAILS AT BEING CIVIL

Well, I can’t put it off any longer no matter how hard I try. And believe me, I’ve tried. Since June of last year I’ve tried. But starting this series of columns – finally starting it – was one of my New Year’s resolutions and I’m writing this on Valentine’s Day. But there’s no putting it off any longer. I’ve got to write about…

Civil War II started in Civil War II #0, but we’re not talking about that issue. The zero issue was all prologue and introduction. I’ve seen fewer setups in a Volleyball match. Civil War II # 1’s where the action is.

Starting with the revelation that there’s a new Inhuman in town.  One named Ulysses whose Inhuman ability is to make predictions about the future. Dire predictions of the future, because where would the super hero story be if Ulysses was predicting sunshine, lollipops, and rainbows I don’t even think predicting somebody was going sleep on the subway, would cut it. (Jeez, when did I start channeling 60s on 6?)

Captain Marvel was delighted with this new weapon she could use to fight big, bad Marvel-style Big Bads. Iron Man, not so much. Iron Man didn’t know enough about Ulysses’s powers or agenda, so didn’t fully trust those predictions of the future. Actually, possible futures as Iron Man pointed out, because the Avengers stopped Ulysses’s first dire prediction — that the Celestial Destructor was going to invade — from happening in the slam-bang all-out action sequence that opened Civil War II # 1.

Iron Man’s problem with acting proactively to stop possible futures was, what if to stop a prediction from coming true, the Avengers had to do something bad? Like kill or imprison some people before they could sire a baby that Ulysses predicted was Hitler reincarnated. He had no problem with using Ulysses’s power to stop the Celestial Destructor from invading. That was an “easy call.” It was the potential Baby Hitler type thing that bothered him.

Iron Man didn’t think the Avengers should use Ulysses. Captain Marvel did. So she used him again. When Ulysses predicted that Thanos would raid Project P.E.G.A.S.U.S. to get a piece of the Cosmic Cube, Captain Marvel assembled a team to prevent… (What do you mean, prevent what? Weren’t you paying attention?)

During the battle against the Thanos, War Machine died. When Iron Man learned his best friend died in a battle to prevent one of Ulysses’s predicitons, Iron Man went more ballistic than one of his Repulsor Rays set on overload.

“You killed my best friend. You killed him as good as if you did it with your own hands.” Which was, you should pardon the neologism, alternative facts.

Captain Marvel didn’t kill War Machine, Thanos did. What did Iron Man want the Avengers and War Machine to do? Ignore the possibility that Thanos was determined to strike in the US and let him do it?

If Project P.E.G.A.S.U.S. called the Avengers after Thanos started his invasion, would Iron Man have had any problem scrambling heroes, up to and including War Machine, to stop Thanos? Of course not. So what was the problem with sending a group of heroes to Project P.E.G.A.S.U.S. before Thanos invaded, so they’d be ready and waiting just in case he did show up like Ulysses predicted?

Not only was Iron Man’s position vis-a-vis the Thanos invasion suspect, it wasn’t even intellectually honest. Hey, Iron Man, remember when you said that using Ulysses’s power to make sure a “big cosmic monster doesn’t invade,” was an “easy call?” What part of stopping a “big cosmic monster” doesn’t apply to Thanos? By my count, it’s none.

Iron Man shouldn’t have been any problem with Captain Marvel’s strategy, except for the fact that for the story to movie forward, it needed Iron Man to act all pissy. So Iron Man acted all pissy and stormed out of the whole comic.

All the way into Civil War II #2.

Where he decided he had to learn how Ulysses’s powers worked. So he flew into the Inhuman’s homc city of New Attilan, grabbed Ulysses, took him to an undisclosed location, tied him to chair, and subjected him to some painful tests to determine the workings of his powers. Reports differ as to whether Iron Man tortured Ulysses. Ulysses said yes. Iron Man said “a little bit.” Let’s just say Iron Man employed some enhanced investigation techniques.

So the man who was worried about Captain Marvel going too far had no problem with invading New Attilan and grabbing up a college student for the purposes of a “little bit” of torture. Iron Man’s standards have more doubles than Wimbledon.

In New York, restraining another person, like Ulysses, of his liberty and holding him in a secret location where he isn’t likely to be found is both unlawful imprisonment and kidnapping.  That’s two felonies from the guy who didn’t want Captain Marvel to go too far. Which, I suppose, is only fitting, Iron Man commited double crimes with his double standards.

During Marvel’s first Civil War, I thought Iron Man acted a little out of character. Now, in Civil War II, with his ends-justifiy-the-means attitude he’s not a little out of character; he’s another character entirely. I’m not sure who. I’m detecting hints of Lex Luthor with traces of Doctor Doom and just a whiff of DeSaad.

Now, I could be wrong about every one of those traces I thought I detected. I don’t exactly have a refined palate. But it’s good enough to know that what Iron Man did was unpalatable.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #399

AS A LAWYER, RALPH BELLAMY WAS INDEFENSIBLE

It’s a good thing this story wasn’t part of the actual series. Otherwise we might not all be here right now.

I’m so old, I watched Perry Mason first run not on the reruns playing on every channel this side of C-SPAN. But it’s not why I became a lawyer. Perry Mason was unrealistic. A murder trial every week where the real murderer was dumb enough to sit in the courtroom and watch. No, Perry Mason didn’t make me want to become a lawyer. The Defenders did.

The Defenders was a show about a middle-aged attorney – played by E.G. Marshall – and his fresh-out-of-law-school son – played by a young, pre-permed Robert Reed. Although the show had some murder mystery episodes, most dealt with some of the complex and serious issues of the time; abortion, religious intolerance, capital punishment, civil rights, conscientious objectors… Come to think of it, those are still some of the complex and serious issues of the time.

I was young. I didn’t always understand The Defenders, but I liked it immensely. See for yourself, a DVD set of the first season is available from Shout! Factory.

The lawyers from The Defenders first appeared in a two-part episode of the anthology series Studio One in Hollywood called “The Defender.” Walter Preston (Ralph Bellamy) and son Kenneth (a young, and not-yet-needing-the-hell-toupée William Shatner) were defending Joseph Gordon (Steve McQueen), who was on trial for murdering a woman during a robbery. Father and son argued over how best to defend the man.

I knew about “The Defender” but had never seen it. Until I found it as a special feature on the aforementioned Shout! Factory DVD set. Now I have seen it.

And wish I hadn’t. Because it was stupid!

The actual pilot episode for The Defenders used the same basic story. The Prestons were representing a man accused of felony murder. Father thinks he’s guilty. Son doesn’t. They argue over how to defend him best. But The Defenders did the story much better.

How was it better? Well, let’s start with Walter Preston.

Wait! Actually, let’s start with the SPOILER WARNING! I’m about to reveal all the important plot points of “The Defender.” If you don’t want all the important plot points of “The Defender” revealed, you might want to stop reading. END OF SPOILER WARNING

Okay, now let’s start with Walter Preston. Walter was a jaded lawyer who took one look at his client and decided Gordon was guilty. Okay, that part’s not so stupid. Lawyers do that all the time. The stupid part was Walter decided his guilty client only deserved a competent defense but not one good enough that the jury might actually acquit him. Walter even refused to use the “guy” Kenneth found who might have been able to secure an acquittal.

Walter violated every legal ethic there is. And maybe even a few that aren’t but should be. Particularly the one requiring a lawyer to represent his client zealously. Walter was required to do everything he could to obtain a result that was in Gordon’s best interests instead of going through the motions with a defense that was just good enough to lose.

Kenneth, strangely enough, wanted to do the job properly and, you know, get Gordon acquitted. Kenneth was young, idealistic and didn’t understand the concept of being more jaded than a Chinese jewelry store. Kenneth even wanted to use the “guy. Walter didn’t. They argued. A lot!

Then Walter had a conversation with Francis Toohey, the prosecuting attorney played by a still-hirsute Martin Balsam. Toohey never cared whether defendants were guilty or innocent. They’d been indicted and Toohey was paid to get them convicted. So that’s what he did. Not caring whether some of them might actually be innocent was how he slept at night.

Toohey’s attitude angered Walter. It should also anger other prosecutors. See, the first ethical cannon for a prosecutor is that a prosecutor should seek justice, not convictions. If a prosecutor feels a defendant is not guilty, the prosecutor should not prosecute. And he shouldn’t not think about a defendant’s possible innocence, just so he can sleep at night.

Walter was so enraged he decided he should actually do his job and try for an acquittal. Toward that end he used the “guy.”

The state’s key witnesses were two eyewitnesses who testified they saw Gordon coming out of the victim’s apartment at the time of the murder. Nothing else connected Gordon to the crime. Maybe it was my legal training; my plotting experience from being a writer; or my many, many, many years of watching television clichés, but I knew who the “guy” was as soon as Kenneth mentioned him back in the First Act of Part One. I spent two hours waiting for a “surprise” conclusion I knew was coming since the first act. It was kind of like watching an M. Night Shyamalan movie, but with better directing.

You probably know who this “guy” was, too. But let’s play it out anyway. The show did.

Walter called the two eyewitnesses back to the stand and had them look at trial table. He asked them, “Are you sure this is the man you saw coming out of the apartment?” Both answered yes. Then Walter revealed the big Gotcha. The witnesses didn’t identify the defendant. Gordon was in the back of the courtroom. They identified this “guy” that Kenneth found who looked like Gordon and who they put at the defense table during some courtroom confusion to fool the eyewitnesses.

I had a few problems with this resolution. First the actor playing the “guy” looked nothing like Steve McQueen. When this episode aired, I was only 4 and I looked more like Steve McQueen. Neither witness should have been fooled into identifying the “guy” by mistake.

Second, Gordon never made bail. He was still in jail and was brought into the courtroom by guards and bailiffs. How did Walter and Kenneth swap Gordon out for the “guy” without any of the bailiffs or guards, who were supposed to be watching Gordon at all times, seeing what they did?

Third, what Walter was doing was so freakin’ obvious, both eyewitnesses should have seen through it and answered, “No that’s not the man I saw coming from the apartment. He’s in the back of the courtroom, where you tried to hide him.”

The case ended when the judge directed the jury to return a verdict of not guilty, because he found the eyewitness testimony to be unreliable. That probably wouldn’t happen in real life.

In real life, a judge would let the trial go to the jury first and see what it did with the case. If it came back not guilty, all was well. The judge wouldn’t have to look soft on crime by acquitting the defendant. If the jury returned a guilty verdict, then the judge could grant a motion for acquittal non obstante veredicto; a fancy Latin way of saying, I find the defendant not guilty notwithstanding the verdict, because the evidence wasn’t sufficient to support a conviction.

That’s the way it would probably have happened it real life. But I can’t blame the show for not going that route. This two-part drama that was full of legal inaccuracies and some outright silliness had already gone on long enough. This quick end to the story was its way of putting it out of our misery. Consider it mercy killing.

Come to think of it, mercy killing was another complex topic handled much better on The Defenders.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #397

HOMER SIMPSON’S NOT AN ABETTING MAN

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?

No.

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 #396

DAREDEVIL SHOULD KNOW THE LAWS OF TEXAS AREN’T UPON YOU

Either the Punisher’s even crazier than I thought he was – and he once gunned down some litterbugs because “littering is a crime against society,” so I don’t just think he’s as crazy as a bedbug; I think he’s what bedbugs point to when they talk about crazy – or Matt Murdock http://marvel.wikia.com/wiki/Matthew_Murdock_(Earth-616) is the worst lawyer of all time. Or both; they’re not mutually exclusive.

I wrote last time about the first issue of Daredevil/Punisher: Seventh Circle #1 . In that story Matt Murdock, assistant Manhattan district attorney and secret identity of super hero Daredevil, was trying to get the trial for a hated gangster, Sergey Antonov, changed to a new venue, because Antonov couldn’t get a fair trial in New York City. Fair enough, that happens. The venue Matt wanted was Texas. Not fair. Not even constitutional and it couldn’t happen. Like I said before, the Constitution commands that a criminal trial must take place in the state where the crime occurred.

What I didn’t tell you was that crazed ex-marine Frank Castle, who was so traumatized when he saw his family gunned down by mobsters that he adopted the name The Punisher and started a one-man war against crime, didn’t want Antonov moved to Texas. It wasn’t that Punisher wanted to keep Antonov in New York, because he didn’t want Antonov to have a fair trial; he didn’t want Antonov to have any trial. He wanted to kill Antonov before there was a trial.

Look, Frank, I realize your name implies that you’re not exactly a spare the rod – or gat or roscoe, or heater – kind of guy. But don’t you think killing a gangster who’s been arrested and is facing trial is a little excessive? If you wait for the trial to be over, he’ll get punished just fine. Meantime you can get on with your important work; like shooting jaywalkers.

So for the next four issues of this mini-series – or eight issues of it’s on-line presentation in Marvel’s Infinite Comics – Daredevil tried to keep Punisher from killing Antonov. Then, in issue #4 somewhere toward the end of their battle, Punisher told Daredevil that the only reason Matt wanted Antonov’s trial moved to Texas is because Texas is a death penalty state. Murdock wanted Antonov tried in Texas, because he wanted Antonov to be executed; something which couldn’t happen in New York because it hasn’t had the death penalty since 2004. And Daredevil, who is Matt Murdock under that horned masked and supposed to know the law, doesn’t deny Punisher’s claim.

So I guess it’s up to me.

Unless Matt knows less about the law than a drama major who scored a big fat 0 on the LSAT, he wouldn’t have been sending Antonov down to Texas to be executed. Because he’d know Antonov couldn’t be executed in Texas anymore than he could in New York.

Yes, I know Texas has the death penalty. Yes I know they use it in Texas. I even know they use it a lot. Doesn’t matter. They couldn’t use it against Antonov.

Let’s ignore what I wrote last time about how Matt couldn’t get the venue of Antonov’s trial changed from New York to Texas and pretend that Matt did get the trial transferred to Texas (try saying that ten times fast), what then? Well, you’d have the trial and, assuming Antonov was found guilty, the sentence. But you’re trying a man in Texas for a crime committed in New York, so whose laws would apply Texas’s or New York’s?

During that trial, the laws and procedures of the state where the crime was committed would apply, not the laws and procedures of the state where the trial was being held. So in Antonov’s trial, the laws of New York would apply, not the laws of Texas. Any defense that was available in the original venue – here New York – would be available in the new venue state – Texas – even if that defense didn’t exist in the new venue.

And what do the laws of New York say about the death penalty? You can probably guess, but seeing as how I’m a stickler for details in this column, I’ll stick to the details. In the 2004 case People v. LaValle, the New York Court of Appeals, the highest court in New York, ruled that the state’s death penalty violated the New York Constitution. That case abolished the death penalty in New York. Since then New York’s death penalty statute hasn’t been amended so the death penalty has never been reinstated. In fact in 2008, then Governor David Patterson issued an executive order that the state’s prisons should remove all their capital punishment equipment.

All of which means, as you probably guessed, New York doesn’t have the death penalty. In his trial, Antonov would argue that as New York, whose laws and defenses apply in the trial, doesn’t permit the death penalty, Texas would not be able to use it against him. Not only could he argue it, he would win the argument. Texas wouldn’t be able to fry him, hang him, inject him, or even chainsaw massacre him.

Unless Matt Murdock was the Dr. Nick Riviera of lawyers, he’d know that Texas couldn’t execute Antonov. Which means he wasn’t sending Antonov to Texas so that Texas could execute him. He was sending Antonov there for some other reason. Maybe Matt wanted to take a side trip to LBJ’s spittoon or the Yogi Bear statue or the Dr. Seuss park  or visit the house where they filmed the original The Texas Chainsaw Massacre, which has been turned into a restaurant – and that certainly isn’t in bad taste.

I don’t know what the reason is, but I do know one thing: It wasn’t so that Antonov could be executed. Or Texecuted. Or even wrapped up in a tortilla and – Hey, someone’s got to say it – Tex-Mexecuted.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #386

DAREDEVIL IS GIVEN THE FINGER

Truer words were never spoken; or put into a first-person narrative caption.

You may recall that attorney – I mean I hope my old columns are at least a little memorable – Matt Murdock, who is secretly the super hero Daredevil, was recently disbarred in New York state after circumstances forced Matt to reveal publicly that he was Daredevil. When New York realized the number of ethical infractions Matt had committed to keep his secret identity secret, it barred him from its bar. Matt then moved to San Francisco, because he was still a licensed attorney in California. Well, that was then. This is now.

Now, everyone has forgotten that Matt is Daredevil, Matt is back in New York City, and his license to practice law in New York State has been reinstated. Don’t ask how.

Seriously, do not ask how, because I literally do not know. The current run on Daredevil simply dropped us in the middle of Matt’s new life without telling us how it happened. The only No explanation we’ve been given as to how Matt ignored Nat King Cole and proved his secret identity was forgettable is “unspecified circumstances.” Although I think we can safely rule out a deal with the devil though. Marvel tried this trick before; it had Mephisto make everyone forget Peter Parker was Spider-Man in “One More Day.” That bit of Faustian forgetfulness proved so unpopular Marvel retconned the Abaddon amnesia angle out of existence in “One Moment in Time.” (And you know what, don’t ask me about that either!)

All we know is what no one else knows, that Matt is Daredevil, that he can practice law in New York again, that he’s back in New York City, and that he’s working for the New York City District Attorney’s office. Considering Matt’s recent record is rife with a lack of legal ethics, some of us were taking bets on how long it would be before Matt breached legal ethics again.

Well, if you had five issues in the pool, you’re a winner.

For the first four issues of the new Daredevil run, Matt was fighting Tenfingers; a new crime lord in Chinatown who, true to his name, has a double dose of digits on each hand and some magic mojo he stole from the ninja assassin organization, the Hand. (Fingers? Hand? I’m sensing a theme here. I’m amazed we didn’t have guest appearances by Iron Fist or Mitt Romney.)

Anyway, Matt had been fighting Tenfingers in both his identities. Daredevil battled Tenfingers and his underlings in the streets. While ADA Matt tried to assemble a case against Tenfingers so he could be prosecuted. In both endeavors, Matt failed miserably. Not only could he not stop Tenfingers, he couldn’t even get Tenfingers to paws.

Because Matt had such spectacular lack of success, he was demoted from heading up the Tenfingers taskforce to the District Attorney’s E.C.A.B. or Early Case Assessment Bureau; meaning Matt will be spending a lot of time in Night Court. (Yes, the same night court where Harry Stone was a judge, but probably a different court room. Although this being a court room in the Marvel Universe, I’ll bet it has just as many crazies.)

imagesIn Daredevil v5 #5, Matt was heading to what was, I think, his first night in night court, when he got an alert that Daredevil should come to the temple in Chinatown where Tenfingers had his headquarters. Matt told his assistant, Ellen King, to cover for him in court. Ellen protested that she was a paralegal, not an attorney. Matt left anyway and narrative captioned those aforementioned truer words, “This is gonna bite me in the ass.”

I see one of three results from Matt’s actions. First, Ellen did the proper thing and told the judge that the attorney who was supposed to be in court skipped out and that she was only a paralegal, so couldn’t proceed. The judge was understandably upset with Matt then continued the court’s docket until either another day or until the DA’s office sent another attorney to cover for Matt. Either way both the judge and District Attorney Ben Hochberg were going to be pissed at Matt for this. (Can I say “pissed here at ComicMix? I guess we’ll find out.)

And I don’t mean a little bit pissed, I mean massively, Matt-gets-fired-and-brought-up-on-disciplinary-charges pissed. Cause in the real world, that’s what would probably happen to an attorney who was just reinstated after being disbarred for ethical violations and who then intentionally skipped a court date and left an unlicensed paralegal to handle his caseload.

The second possibility is that Ellen still did the correct thing and told the judge she couldn’t go forward. The judge then did the incorrect thing and forced Ellen to prosecute the cases in that night’s docket. Unlikely. This possibility would also result in Matt’s being fired and brought up on disciplinary charges, but it would also result in the judge being brought up on disciplinary charges for forcing an unlicensed paralegal to act as an attorney. It would probably also require all of the people who were arraigned that night to be arraigned again, when someone learned that a paralegal was operating as an attorney without a license. So I doubt the judge would do that.

The third possibility is that Ellen did the stupid thing and didn’t tell the judge she was only a paralegal and actually handled Matt’s caseload. This result is also unlikely. It would still result in Matt being disciplined and still force the court to re-arraign everyone who appeared in night court that evening. It would also probably result in Ellen’s being fired. She couldn’t be disbarred, because she wasn’t an attorney, but the DA’s office would fired her and possibly bring her up on criminal charges for practicing law without a license. I don’t see Ellen doing that to herself.

You may have noticed that in all three of my possible scenarios, Matt gets disciplined for skipping out on court and leaving an unlicensed paralegal to cover for him. No matter what the judge and Ellen did, Matt is going to take it on the chin. And considering he’s a super hero, that’s a pretty prominent chin.

So, yeah, I guess you could say it’s gonna bite Matt in the ass. I think it’s going to do a few more things to him, too, but I know I can’t say what those are here in ComicMix.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #380

AMANDA WALLER LOSES TO A CONFESSIONAL PROFESSIONAL

There’s an old saying, “Confession is good for the soul.” But what if the confesser has no soul? Then that confession’s not good for much of anything; especially portrayals of the law.

New Suicide Squad #15 had a scene you’ve seen dozens of times. Well I’ve seen it dozens of times, but I’ve been reading comics and watching TV lots longer than most of you. In this particular case, the scene in question involved Amanda Waller, head of Task Force X, also called the Suicide Squad – the secret, and probably illegal, government black ops group made up of DC Universe super villains culled from Belle Reve Prison – and Miss Pesta, CEO of Calvary Corporation, a multinational corporate conglomerate that for the past several issues of New Suicide Squad had been trying to bring the Suicide Squad down, because the Task Force had disrupted several deals Calvary had in place in other countries. (Sorry about that last sentence, it had more clauses than a family reunion at the North Pole.) (And while we’re doing asides, Calvary Corporation? Seriously? Your evil corporation has the same name as the place where Jesus was crucified? Does no one appreciate subtly? What was Calvary’s business address? 666 Satan Place?)

Anyway, Amanda Waller – who is nowhere near as competent or as intimidating as she had been in her pre-New 52 carnation – decided to confront Miss Pesta head on. Toward that end, Waller broke into Pesta’s office and confronted Pesta head on. And armed, not with a gun but with Deadshot, a costumed super villain assassin in the DC Universe. He had the gun, which he pointed directly at Miss Pesta. Waller and Pesta talked of many things. Not shoes – and ships – and sealing wax; just what Pesta and Calvary was up to and why.

Pesta freely admitted that Calvary wanted to bring Task Force X down and had convinced Task Force X’s new supervisor, Vic Sage, to help them. It wasn’t hard, Sage hated Waller and wanted to destroy her. Sage leaked top secret information about Task Force X through one of the Belle Reve inmates under his supervision. The inmate would be blamed for the leak, so it would never be traced back to Sage or Calvary, and Task Force X and Amanda Waller would be shut down.

When Waller pointed out to Pesta that she had just confessed to conspiring to bring down a government program, Pesta almost literally laughed in Waller’s face. Did I mention that this New 52 version of Amanda Waller isn’t anywhere near as competent or as intimidating as the previous version of the character had been? If I didn’t, she isn’t. And if I did, that hasn’t changed.

Pesta’s actual answer was to say, in what I assume was a mocking tone – Pesta’s word balloon didn’t contain a convenient stage direction like mockingly – “So I deny it later or say you coerced me. You did break into my office and held me at gunpoint, after all.”

Seriously, how many times have we seen this scene played out? Bad guy confesses to cop then says, “but I’ll deny ever making this confession and it will be your word against mine,” Or says, “I’ll say you beat it out of me;” actually believing that a judge or a jury will actually believe the bad guy and not the cop. I don’t know about you, but I’ve seen the scene more times than I could count on all the fingers at a polydactyl convention.

Please, if for some reason you’re ever braced by the police and you freely confess to some crime, don’t think you’ll be able to convince a judge or jury that either a) you never made the confession or b) the police beat/coerced the confession out of you. In the immortal words of Rocket J. Squirrel to Bullwinkle J. Moose, “But that trick never works!”

Judges and juries don’t want to believe that policemen lie. They don’t want to believe that the police do anything wrong or that any arrest was carried out in any manner other than “by the book.” They especially don’t want to believe that the police beat, torture, or in any other way coerce confessions. Judges and juries want to believe confessions are on the up and up, so that they can convict the defendant with a clear conscience. Having a confession makes keeping that old conscience clear all the easier. In other words, unless you’re a southern belle, you should never begin any sentence to a police officer with the phrase, “I must confess.”

Okay, maybe things aren’t quite as bad as that cynical preceding paragraph made it seem. Except for the part where I said judges and juries don’t want to believe that a confession was anything other than valid. That part is true. I spent twenty-eight years trying to convince judges and juries to the contrary with very, very limited success.

No, let me rephrase that. With no success. From time to time, I did manage to get a judge to suppress physical evidence seized during an illegal search, but I can’t think of even one time where I convinced either a judge or a jury that a confession was coerced and should be disregarded. And don’t think I didn’t try.

Now I’m not saying that it wouldn’t have happened in Miss Pesta’s case. Pesta’s an attractive and rich corporate CEO who could honestly testify that a government operative broke into her office and had an underling point a gun at her head before she confessed. She and her story might have some jury appeal. Which is more than we can say about Amanda Waller. Waller is curt and abrasive and heads up a secret, illegal government operation that most Americans would not want to know existed and who brought a costumed hired gun for intimidation purposes. Under those circumstances, it is possible – possible mind you – that a judge or jury would believe Miss Pesta that she never made the confession or that it was coerced. But it happens so infrequently that, were I Miss Pesta, I certainly wouldn’t want to confess and then bank my freedom on the possibility that I could get someone to buy the into the coercion ploy. Unless, of course, I was planning on going to my bank and buying someone into buying the coercion ploy.

So maybe Miss Pesta could be successful in convincing others that her confession was coerced. Remember she is an evil corporate CEO in a comic book story. (Hey, aren’t they all?) In other words, Miss Pesta is a trained professional bad guy, so don’t try this at home.

Because there’s another old saying you should remember, “Your results may vary.”

The Law Is A Ass

Bob Ingersoll The Law Is A Ass #379

WONDER WOMAN GOES OUT FOR TRICK OR TREATMENT

“Who watches the watchmen?” Not sure that one’s ever been answered. Who judges the judges? Check the byline.

Deborah Domaine, A.K.A. the super villainess The Cheetah, was serving a sentence in Iron Heights Prison. In Sensation Comics Featuring Wonder Woman #15, a federal court was holding a hearing on Debbi’s motion to be transferred to the Ohlendorff Metahuman Psychiatric Hospital, because Iron Heights wasn’t equipped to treat her “severe dissociative identity disorder.”

Sensation Comics Featuring Wonder Woman #41 (2015) - Page 12

The prosecution called Wonder Woman as a court-appointed expert witness on prison security. During Wonder Woman’s testimony, we got all the background exposition they don’t put into captions anymore. Last year, Debbi escaped from the psychiatric facility of Concord Federal Prison and attacked Wonder Woman in the National Air and Space Museum. During the ensuing fight – what’s a comic book story without an ensuing fight? – one hundred thirty-eight innocent bystanders were injured. Collateral damage. Wow, that fight had more collateral than ten bank loans. Anyway, Debbi was recaptured and transferred from Concord to the more-secure Iron Heights.

According to Debbi’s lawyer, Iron Heights’s medical staff adjusted Debbi’s medication and Debbi’s behavior had stabilized. So Debbi filed a motion to be transferred to Ohlendorff where she could receive the treatment necessary to cure her of her mental illness. Wonder Woman opposed the transfer and testified Ohlendorff’s security protocols were too lax to insure that Debbi would remain incarcerated there.

Why was Wonder Woman called as a court-appointed expert on prison security? I guess because her foes escape incarceration every alternate Tuesday that gave her expertise on which DCU prisons are secure. Personally, I’d question Wonder Woman’s expert status unless she said none of them are. DCU prisons have the biggest Open Door Policy since John Hay.

Unfortunately for Wonder Woman but not for the story – this was only page 4, something had to fill out the remaining pages – Judge Holzman transferred Debbi Ohlendorff. Then, short story shorter; Debbi escaped, Wonder Woman captured her, and Debbi went back to Iron Heights.

You might be wondering how Ohlendorff, a psychiatric hospital dedicated to treating metahumans with mental illness problems, could lack sufficient security to make sure its extremely dangerous patients all stayed on the grounds. I know I did. Seems a bit counterproductive. But, then, so does making a hotdog that’s bigger than the bun and it’s not like that never happens.

I wondered even more about defense counsel’s argument that neither Iron Heights nor any other metahuman prison was equipped to treat Debbi’s mental condition. The Eighth Amendment’s cruel and unusual punishment clause requires prisons to supply inmates with adequate medical care. The US Supreme Court said so in Estelle v. Gamble. Federal courts have applied Estelle’s rule both to physical health and to mental health care. When prisons show an intentional indifference to the mental health issues of its inmates, they violate the Eighth Amendment. Among the ways prisons can show indifference are a failure to have an adequate, qualified mental health staff on-site and the failure of large prisons to have a licenced psychiatrist on staff.

We know Iron Heights, like other DCU prisons, locks its cell doors on the honor system, so it might also consider viol-Eight-ing the Amendment to be as a badge of honor. Maybe it didn’t have on-site psychiatric staff, either. In that case…

Wait. No. No. Defense counsel said that Debbi received medications in Iron Heights, that Debbi’s medication had been adjusted by Iron Heights, and that the medication had stabilized Debbi’s behavior. Someone on Iron Heights’s staff was administering those meds. More important, someone on staff was competent enough to evaluate Debbi’s medications and adjust them by prescribing a proper dosage which had stabilized Debbi. That someone had to be a doctor. Debbi was receiving some treatment in Iron Heights, treatment that seemed to be working. How was Iron Heights not equipped to handle her mental disorder?

But for the sake of argument, let’s assume Debbi’s argument was valid. There is a case which held the failure to transfer an inmate from a prison to a hospital when the prison could not adequately treat the inmate was deliberate indifference; lending support to Judge Holzman’s ruling. But transferring Debbi to a hospital the judge knew couldn’t keep her locked up, that’s a different matter.

Mentally-ill inmates may have the right to be transferred to a hospital, but they don’t have the right to choose which hospital. Courts have ruled prisons must give inmates medical treatment, but they don’t have to give the exact treatment the inmate requests if other treatments are adequate. In addition, the government’s responsibility to protect its citizens means mentally-ill inmates should be hospitalized in an environment that is consistent both with their treatment and with public safety. If the defendants demonstrate a threat to public safety – by, say, escaping every alternate Tuesday and injuring one hundred thirty-eight innocent bystanders – courts are justified in having them hospitalized in a more restrictive hospital than the one the defendant might choose.

Judge Holzman might have granted Debbi’s motion to be transferred to a hospital. But in light of her past record, I find it doubtful that Judge Holzman would have transferred her to a hospital that a court-appointed expert on security testified wouldn’t be able to hold her. Hell, Judge Holzman didn’t even let Debbi into his courtroom; Debbi attend the motion hearing via closed-circuit television. If Holzman thought Debbi was so dangerous that he didn’t want her in his courtroom; he would not have sent her to an insecure mental health facility. He would have sent her to a hospital but one that was more secure. Like Concord or Arkham Asylum. Then Debbi could receive the treatment she required and the public would be safer, because Debbi was in a more-secure facility.

One where she might only be able to escape every third Tuesday.

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