The new television season has begun. (Goody goody gumdrops?) With only two superhero shows displaying their wares, it’s a bit early to comment on innovations, trends and outrages, whatever causes to hurl an anvil at the screen or curl up next to it and purr.
Of the two returnees, Marvel’s Agents of SHIELD seems to be serving more of the same. It’s kind of interesting that some comic book stuff is being repeated in the electronic media. A complaint I used to hear about Marvel’s comics is that the storylines were difficult to follow, especially for newcomers. I have a similar complaint about SHIELD, but maybe I’m just dumb. Well, maybe, but if that’s true I’m not the only one. Last week I was talking comics with an Ivy League professor and this certifiably intelligent and erudite intellectual admitted that he, too, had trouble following SHIELD’s plots.
Not a problem with the other early returnee, Gotham. Though the stories are reasonably dense, there’s never any difficulty knowing who’s doing what to whom and why, and I remain firm in my belief that clear storytelling is a virtue. The show has given us a plot alteration, however: James Gordon, heretofore known as the straightest officer in town, has quit the force and is working as a bounty hunter which, as far as I’m concerned, is the same thing as a private eye.
Gordon has done some impressive evolving since he first appeared 77 years ago in Detective Comics #27, He began as a softish, elderly functionary who was never seen doing any hands-on law enforcing; he had Batman for that. He was a bit of a blank slate, our Jim, with no private life, hobbies, quirks, just duties to perform, which he did perfunctorily. Not an impressive dude.
But, like flesh-and-blood people, he changed. Got himself a wife and kid (though not in the television version). Became somewhat bitter – for a cop in Gotham City, that was natural – and maybe got chummy with people he should have avoided. He has just acquired a new girlfriend but, uh oh, his ex is back in town and is probably heading his way and that can’t be good. (But we’re happy to see Lee Tompkins again.) He’s still a credit to his kind, but he’s no longer a Goody-Two Shoes; if the rules need breaking, he breaks them.
Gordon is, in short, the kind of hero who began to be popular after World War I. He knows that the system is broken and that no authority figure should be trusted, including police. So he lives by a personal code and brings justice to places even good cops might not care to reach. He’s brave and tough. Though he’s basically a loner, he often has a sidekick and here, too, TV’s Gordon fits the archetype; Sergeant Bullock, who was a slob in the comics, is a groomed and decent man who has Gordon’s back.
I wonder if there’s a John Watson somewhere in Bullock’s family tree.
Stay tuned for more excitement!
(Editor’s Note: We included the shot of J K Simmons in the art because he’s the next guy to play the role of Commissioner Gordon – in the upcoming Justice League movie – and because the editor likes J K Simmons and it’s his computer.)
For rent: Secret laboratory. Ideal for mad scientists, superheroes and their posses.
Now, about those posses: time was when superheroes operated pretty much alone, or with a sidekick, who could be anyone from the original Green Lantern’s cab driving Doiby Dickles to Batman’s intrepid though preadolescent Robin. Oh, there were other continuing characters in your basic superhero saga – think Jimmy Olsen and Commissioner Gordon – but when it came to doing the daring deeds the folk in the costumes usually flew solo.
Then things evolved and –
Almost certainly, a lot more people will see Supergirl on television this week than ever read one of the Maid of Might’s comic books. She’s plenty super – give her that – and as bonuses, attractive and charmiing, but she doesn’t fight evil by herself. No, she’s allied with a brainy group of colleagues who hang their doctorates in a secret lab. And if we scan the videoscape, we see that Supergirl has peers. The other two television title characters most like their comic book inspirations, Arrow and the Flash, also have lab-dwelling cohorts who can always be depended on to have the information the good guy/girl needs.
Structurally, the three shows – Supergirl, Arrow, and Flash – are virtually identical. And, again structurally, they’re pretty close to Archie Andrews, that teenage scamp, and the gang at Riverdale High. The biggest difference is that the Riversiders have no laboratory, but nobody’s perfect.
There’s a lot to be said for adding pals to the superheroic landscape. They give the hero someone to talk with, thus allowing readers/audience to eavesdrop on vital exposition (though sidekicks can do this, too, and if you don’t believe me, ask Dr. Watson.) Supporting players can also provide story opportunities. And they can add texture and variety to scenes. And the occasional comic relief. And, by their interactions with the chief evil-queller, they can add depth to that individual’s psyche. But mostly they can serve the same function as those stool pigeons and confidential informants served in the old private eye and cop shows, the scruffies who always knew what the word on the street was: they can quickly and efficiently supply data that enables the hero to get to the exciting part, usually a confrontation.
Finally, the pals and gals give the hero what seems to be absolutely necessary: a family. It’s usually a surrogate family, to be sure, and it may not be much like your family, but it has a familial dynamic and it allows the audience to experience, by proxy, what might be missing from their real lives: a secure knowledge that there are people who can counted on, who will always forgive you and have your back. And such nearests and dearests have to hang out somewhere, so why not a secret laboratory?
And while they’re there, they can supply the location of that master fiend, the one with the purple death ray and the really atrocious table manners.
In Batman Eternal # 21, Commissioner Jim Gordon, who had been tried on 162 counts of manslaughter was found guilty on 123 of them. That must have been soooome interesting trial. The prosecution alleged Gordon negligently discharged his service revolver in a subway station, causing a transformer box to explode. This catastrophe somehow caused two subway trains to collide. The resulting death toll was 162, hence 162 counts of manslaughter. So, based on these facts, how was Gordon convicted on only 123 counts? Shouldn’t he have been guilty of everyone who died in the crash? Not most everybody?
Did 39 people who were on the subway all die of sudden, simultaneous heart attacks just seconds before the crash? Or 28 died from slow-acting poison administered by their wives at breakfast, while 10 of them succumbed to Legionaries’ Disease, and one of them just burst out in spontaneous human combustion? No, there’s nothing wrong with this result, I’m just curious as to what evidence the jury could have heard that made them believe that Gordon was responsible for only 123 of the deaths but not those last 39.
Anyway for some reason not explained in the story, Gordon was convicted of 123 counts of manslaughter. Then, for some reason also not explained in the story, he was promptly sentenced to life in prison in Blackgate Penitentiary.
Now we are in the realm of something legally wrong with the result. Long story short – a term that can’t be applied to Batman Eternal, itself – Gordon really wasn’t sentenced to a life term, because he couldn’t have been.
What does the Constitution mean when the Constitution says that a person can’t be deprived of liberty without due process of law? Among other things, it means that a defendant can’t receive a sentence which is not authorized by the sentencing statutes of the jurisdiction in which he or she was convicted. See, e.g., Williams v. New York (1949) 337 U.S. 241.
(Wow, it’s been a few years since I’ve used the old “See, e.g.,” in a sentence. Nice to know the muscles haven’t atrophied.)
Boiled down to its essence, if a state trial court imposes a sentence which is greater than the sentence that jurisdiction’s sentencing statutes authorize, that sentence is void. Boiling the essence down to its essence, if a defendant is convicted of theft and the statutes authorize a maximum sentence of only one year for theft, then the defendant can’t be sentenced to two years. Not even if the defendant stole candy from a baby and the judge thought a longer sentence was more appropriate. The harsher sentence was not authorized by the law and due process says only the sentences authorized by law can be imposed.
In the same way, if a person is convicted of manslaughter in New Jersey and the New Jersey statutes don’t authorize a life sentence for manslaughter, then imposing a life sentence is unconstitutional and the sentence is void. Doesn’t matter that the defendant’s manslaughter was magnified by a factor of 123, the judge can’t up the sentence to something not found in the law, just because the crimes were particularly heinous. (Which means, unfortunately, no matter how much we may think they deserve it, the producers of Jersey Shore can’t get the death penalty.)
New Jersey Statute 2C:11-4 defines manslaughter. It, in fact, defines two kinds of manslaughter. They are aggravated manslaughter, a felony of the first degree, and manslaughter, a felony of the second degree. If you surmise that felonies of the first degree carry harsher sentences than felonies of the second degree, you are correct. Congratulations on your astuteness. If you happened to make this surmise based on what your learned after years of reading “The Law Is a Ass,” then congratulations on your good taste and thanks for paying attention.
Batman Eternal never actually mentioned whether Gordon was charged with manslaughter or aggravated manslaughter. For the purpose of this little treatise, I’ll assume he was charged with the worst form of manslaughter: aggravated manslaughter under circumstances manifesting extreme indifference to human life. Why? Because that’s the version of manslaughter that has the longest sentence. If any version of manslaughter was going to carry a life sentence, that would be the one.
Buuut, it doesn’t. The same statute that defined aggravated manslaughter also set the maximum sentence for aggravated manslaughter. Set it at 30 years.
That’s 30 years; not life.
Last time I looked – in fact every time I looked – a life sentence was longer than 30 years. Gordon’s life sentence exceeds the statutory maximum sentence for a manslaughter conviction in New Jersey. Which means the life sentence imposed on Gordon was illegal. And unconstitutional.
Sure, the judge could have imposed a maximum sentence of 30 years on each of the 123 counts of manslaughter and ordered Gordon serve them consecutively; that is one after the other, after the other, and so on until you reach 123 of them. Quick math – okay, quick use of the calculator app on my computer – reveals that maximum, consecutive sentences in Gordon’s case yields a sentence of 3,690 years. But that’s still not life.
Yes, 3,690 years is the functional equivalent of a life sentence. In fact it’s closer to the functional equivalent of a life sentence with a few extra zeros added to the back end just to seal the deal. Not to mention seal away the defendant for a good long while. But 123 sentences of 30 years maxed and stacked, is still shorter than a single life sentence. The life sentence was illegal.
Which is why I say Gordon couldn’t have been sentenced to a life term. Because he couldn’t.
Would it have been that difficult for someone to have checked what sentences would be possible for Gordon’s manslaughter convictions? I wasted a whole ten seconds writing a simple and rather unimaginative Google search on “New Jersey manslaughter sentences” which produced a whole page of links almost any of which revealed the answer. With that information, the writers could have given Gordon an actual and legal sentence not whatever sounded the worst.
For that matter, does life actually sound worse than 3,690 years? I don’t think so. After all, 3690 years, much like Batman Eternal, is actually longer than life.
I’ll let you in on a little secret: Batman Eternal isn’t. Eternal, that is. It won’t go on forever. Sometimes it just seems like it will.
Of course, if it did last an eternity and it continued to do things like the bail hearing found in Batman Eternal # 4, that wouldn’t be bad for me. It would mean an eternity of column material.
So, in Batman Eternal # 4, Commissioner Gordon appeared before a judge in a bail hearing after being charged with 162 counts of manslaughter. If you’re wondering how or why, you can find the answer inBatman Eternal # 1. Or you can read last week’s column, where I discussed exactly that. But don’t look here, because I’m not chewing that cud twice. Why not? Be cuds, that’s why.
The judge denied Gordon bail with the following reasoning, “All this destruction. All this death. This is your fault, James Gordon. Because of your negligence. One hundred sixty-two dead. Billions in damage. Critical Gotham infrastructure destroyed. And a major disruption to the lives of every citizen in Gotham. … I’m sorry … but the prosecution is correct that you are a flight risk. You’ve a longstanding willingness to align yourself with Gotham’s vigilante elements, so I’m afraid I have no choice. Your request for bail is denied. And you will be held in Blackgate Prison until your trial for manslaughter.”
A judge in a bail hearing wouldn’t say those things. Oh, he might say the “Your request for bail is denied,” part. He wouldn’t say the, “This is your fault,” part. Between newspapers, TV, blogs, and even live tweeting, other people, meaning probably all of Gotham City, would know that this judge – a respected person who the laity look up to as an expert on the law – said Gordon was guilty. Good luck finding an impartial jury after that little tirade.
As for bail, remember, I only said the judge might deny bail. Might being the key, and even italicized, word. I think it’s unlikely that the judge would deny Commissioner Gordon bail. Okay, more likely than a judge expressing his opinion that the defendant was guilty, but still not likely.
Bail is a pledge of money or property the defendant makes as a surety that he will return for trial if the court releases him before trial. The Eighth Amendment to the Constitution says all criminal defendants have a right to bail that is not excessive. And, while the Eighth Amendment doesn’t expressly grant a right to bail, Rule 7:4-1 of the New Jersey rules of court specifically does grant all defendants a right to bail.
The judge denied bail because he deemed Gordon was a flight risk. The factors which a judge is supposed to considerin order to determine whether a defendant is a flight risk are such things as the length of possible sentences, the strength of the evidence, the defendant’s family and community ties, the defendant’s financial resources, the defendant’s character, and the opportunity to flee.
I admit, the “strength of the evidence,” and “length of sentence” factors do weigh against Gordon. The evidence in against Gordon appeared to be strong. It probably will continue looking strong until Batman Eternal # 48 or so, when Batman finally stops treading water and starts investigating the case in earnest.
The maximum sentence for aggravated manslaughter in New Jersey is 30 years. If Gordon were convicted on all 162 counts and the judge imposed maximum, consecutive sentences on each count, that would be 4,860 years. Even I, who’s acting as devil’s advocate for Jim Gordon, admit that is more than just a little bit lengthy.
But while these facts alone might make Gordon seem a flight risk, those aren’t the only factors the judge should have considered. What about the other factors a judge is supposed to consider? What about, say family and community ties. Gordon has plenty.
Commissioner Gordon had a distinguished career in public service during which he rose from the rank of sargent to commissioner. In less than five years, if I read the revised continuity of the New 52 correctly. He has a daughter in Gotham City. He has many friends in Gotham City, including one of the leading citizens of the city, Bruce Wayne. In other words, Gordon has lots of family and community ties to the community. This factor weighs heavily against ruling Gordon a flight risk.
How about financial resources? Gordon doesn’t have a lot. He was a cop. An honest cop – one of the few honest cops in Gotham City, it seems. Cops don’t earn a lot of money. Honest cops earn even less. Okay, commissioners earn more than beat cops, but still, Gordon wouldn’t be rich. Certainly not rich enough that he could set up a new life for himself in, say Belize, were he to skip bail and flee Gotham.
Yes, Gordon does have rich friends, including one of the leading citizens – and the richestcitizen – in Gotham City, Bruce Wayne. Wayne could set up a new identity for Gordon, if Gordon choose to flee. And if Wayne decided to subvert the law in this way. But what evidence could thethe state introduce to prove that Bruce Wayne was likely to fund any plan Gordon had for fleeing the jurisdiction? Probably even less evidence than it could introduce to prove that Gordon planned to flee the jurisdiction. And it didn’t have any evidence that he was going to flee.
Defendant’s character. Remember what I said about Gordon being one of the few honest cops in Gotham? Kinda goes to his character, doesn’t it?
The only evidence that the state really had to prove that Gordon had a bad character is that he worked hand-in-hand with known vigilantes. This was the only reason the judge cited when he denied bail. But just because a man works with vigilantes, particularly vigilantes who are actually quite effective in bringing the criminal element to justice, doesn’t make him a person of bad character. Moreover, working with actual justice-helping vigilantes would dictate that a person was of a law-abiding character, not a bail-jumping character.
After weighing the factors in Gordon’s case, I don’t think there was enough evidence to justify denying Gordon his right to bail. To be sure, the judge could have set the bail very high. But I still think the judge would have granted bail.
So why didn’t the judge grant Gordon bail? I have a theory.
Remember what I said earlier about Gordon being one of the few honest cops in Gotham City? Same is true of its politicians. Mayor Sebastian Hady? Corrupt. Former police commissioner Gillian Loeb? Corrupt. The commissioners between Loeb and Gordon? Corrupt. Tammany Hall? Historically corrupt. But it’s historical corruption is only a fraction of the corruption that is shown every time a politician appears in a Batman story. So it wouldn’t be a stretch to conclude the judge in Gordon’s hearing? Corrupt.
Now someone is orchestrating this massive 52-issue plan to frame Commissioner Gordon. Is it so hard to believe that the judge would be adverse to accepting a little something, something from that “someone?” Or that the trial judge accepted a little more something, something to order that Gordon serve his time waiting trial in Blackgate Prison instead of the county jail, where most pre-trial detainees are held? I don’t think so.
Were this England, instead of Gotham City, you could say denying Gordon bail was a case of quids pro quo. It being Gotham City, I think it’s more a case of status quo.
There are, among people of a particularly black-humored and waggish bent, jokes that you can’t have manslaughter without mans laughter. Well, I’m not laughing. Not only does manslaughter entail the unlawful killing of another human being – something which is not inherently humorous – but manslaughter is also how the long, arduous Bataan Death March that is Batman Eternalstarted. And there ain’t anything inherently humorous about that either.
Batman Eternal started with Commissioner Jim Gordon chasing fleeing felon Derek Grady into a subway station. The chase ended on the subway tracks, while two subway trains were approaching the station on the same track, from opposite directions. Grady was standing in front of a transformer box and Gordon saw a gun in his hand. So Gordon shot at Grady’s gun, intending the classic Lone Ranger disarm.
(If your only experience with the Lone Ranger is the Johnny Depp movie, I pity you. The real Lone Ranger was more competent than the oaf in that movie. He never took a life. He shot the guns out of the bad guys’ hands. He was that good. Oh yeah, and his horse couldn’t climb trees, either.)
We’ll never know whether Commissioner Gordon was as good a shot as the Lone Ranger. He didn’t shoot the gun out of Grady’s hand, because Grady didn’t actually have a gun. Gordon had been tricked into thinking he saw a gun. Gordon’s bullet passed through the nonexistent gun and hit the transformer box behind Grady. The box exploded. Then the switching mechanism for the tracks didn’t activate. Neither of the two trains switched to a new track. They collided head on causing one hundred sixty-two civilian deaths. Jim Gordon was arrested on one hundred sixty-two counts of manslaughter. One hundred sixty-two counts, one arrest. It would have been silly to arrest him one hundred sixty-two times. And a waste of fingerprint ink.
Like I said, not a laughing matter. Except, you know, I’m still going to make more jokes in this column, because, you know, it’s what I do and I’m, you know, a hypocrite. But I’m also a pretty good criminal defense attorney. And even though I haven’t practiced in years, I can still be a pretty good pretend attorney for fictional characters.
For example, I know it’s not enough that the state of New Jersey charged Jim with one hundred sixty-two counts of manslaughter. What’s important is that, like bubble gum on the underside of a desk, the charges have to stick. The one hundred sixty-two manslaughter charges against Jim? They’d stick worse than an unlicked postage stamp.
New Jersey Statute 2C:11-4 two kinds of manslaughter, aggravated manslaughter and simple manslaughter. (Okay, there’s also vehicular manslaughter, but Gordon was on foot, so fergedaboudit!) Further complicating matters – because people who write penal codes are never satisfied until they can complicate matters by creating multiple ways for every crime to be committed – each type of manslaughter has two variants. A person is guilty of aggravated manslaughter if he either causes a death under circumstances while manifesting extreme indifference to human life or causes a death while attempting to elude a law enforcement officer. A person commits simple manslaughter when he either recklessly causes the death of another or causes the death of another while in the heat of passion resulting from reasonable provocation. Fortunately for our purposes, just like vehicular manslaughter, two of those four manslaughters are off the table.
James Gordon didn’t cause anybody’s death while eluding the police. He was the police and Grady was eluding him. Only the eluder can commit manslaughter, not the eludee. (I’ve always wanted to make one of those inane “er”/“ee” comments, One more thing off my bucket list. Moving on to my next item. You wouldn’t happen to know where I can get a gallon of chipotle mayo and yak’s milk, would you?)
Gordon also didn’t cause anyone’s reasonable provocation. While a fleeing felon not surrendering his gun might constitute reasonable provocation, that’s not the case here. Gordon thought he saw a gun, but every witness, including Batman, said Grady didn’t have a gun. Even I, the omniscient narrator, tell you, Grady didn’t have a gun. (Why Gordon thought he saw a gun is a long story, but so is Batman Eternal. How Gordon was made to believe Grady had a gun was ultimately revealed in Batman Eternal # 19. As I’m writing about Batman Eternal # 1 and don’t want to write Spoiler Warning this week, I won’t go that story today.) What’s important is that Grady didn’t have a gun. No gun, no provocation. No provocation, no heat of passion. (No Heat of Passion, sounds like the worst Harlequin Romance ever!)
So what about causing a death with extreme indifference to life or causing death recklessly? Like your Christmas centerpiece in January, they’re still on the table.
Gordon said the transformer box behind Grady was shut down and shouldn’t have exploded. He also said the transformer box only controlled the station giving power to the station’s lights and turnstiles. It didn’t control the tracks or their switching boxes. Gordon shot at the gun he thought he saw even though it was right in front of the transformer, because he believed even if he hit the transformer by accident, that would not cause the two subway trains to collide.
For the sake of argument, let’s assume Gordon was correct. I say this because if Gordon was wrong, then he was guilty of manslaughter. End of story. End of column. And I still have a few jokes I’ve got to put somewhere.
I also say this because, let’s face it, Gordon was set up. Somebody tampered with the transformer and the tracks. Eventually, Gordon will be cleared and be commissioner again. We all know this, even if Batman Eternal hasn’t told us how he was set up or who did it yet.
Anyway, if Gordon was correct, then he wasn’t guilty of manslaughter. If shooting the transformer by accident wouldn’t have had any effect on the trains, then he didn’t show indifference to life. He honestly believed that if he accidentally shot the transformer, it wouldn’t affect anything.
As for reckless manslaughter, recklessness requires proving the conscious disregard of a substantial risk that a death would result from one’s actions. If shooting the transformer box wouldn’t do anything, then there wasn’t a substantial risk of death from his actions. Not even the Neil HamiltonCommissioner Gordon from the Batman TV show, who set the standard for police incompetence, could disregard a risk that wasn’t even there.
Even if Gordon acted negligently in shooting the box, that can’t get him convicted of manslaughter. In the eyes of the law, a negligent act, or simple accident, does not rise to the level of a reckless act. In New Jersey, manslaughter has to be reckless not negligent.
The prosecutors might argue Gordon was wrong; the transformer wasn’t shut off and did control the switching mechanisms, so shooting toward it was reckless and showed indifference toward life. It should be pretty easy to prove whether Gordon was correct. Any competent electrician could look at the station’s wiring schematics and determine who was right. (Sure the police in Gotham City are incompetent, but there must be competent electricians in the city. Who do you think wires up all those death traps?)
Might Gordon may be guilty of some crime, say negligent homicide? Maybe. But he was charged with manslaughter and I wanted show that I don’t think the prosecution can make its manslaughter case against Gordon.
Still, even if you haven’t been reading Batman Eternal, you know the prosecutors will make their case against Gordon. Batman Eternal is, after all, a fifty-two issue limited series that’s running every week for an entire year. That’s 1,040 pages worth of story. 1,040 is even more pages than I need to fill out my own 1040 every April 15th. DC has to have something that stretches this story out for 1,040 pages. Having Gordon acquitted of all one hundred sixty-two counts of manslaughter would seem to be counter productive to the product.