Tagged: Fifth Amendment

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #409

JESSICA JONES RECONSTRUCTS THE CRIME

Well, I can’t put it off any longer no matter how hard I try. And believe me, I’ve tried.

The last time I started a column with those words we were engaged in a not-so-great Civil War. It’s how I began my multi-column series on Marvel’s Civil War II. Today we turn to the aftermath of Civil War II. Call it Marvel’s Reconstruction Era, only the historical one was probably less painful.

Inhuman Ulysses Cain predicted future crimes. Captain Marvel arrested everyone the predictions said would commit some future crime and put them in jail. I wrote about why this was against the law. You know, it’s a pity that this Captain Marvel is forcing a perfectly respectable Captain Marvel  to call himself Shazam.

One of the future criminals Captain Marvel imprisoned was Allison Green. Problem was, the prediction about Allison was wrong. She was neither a terrorist nor a criminal mastermind. Or wasn’t until she got so upset by what happened to her that she dedicated herself to bringing down Captain Marvel and other super heroes. Then she became both.

Toward this end, Alison formed an anti-super hero network which Captain Marvel wanted to infiltrate. Toward that end, Captain Marvel enlisted former super heroine turned private investigator Jessica Jones. They faked a fall from grace that sent Jessica to jail and ruined her reputation. Then they dangled the Jessica bait in front of Allison Green.

This fake-somebody’s-fall-so-the-badguys-will-recruit-him ploy was already old when 77 Sunset Strip used it in its first season, and that was so long ago that even men of a certain age are too young to have seen it first-run. (Only men of an more uncertain age, like me, had that chance.) Still, the ploy worked as well as it did back when Hector’s grandfather was a pup. Allison Green scooped up Jessica and in Jessica Jones #6, Jessica lured Captain Marvel into Allison’s trap.

This ploy only works if the big bad cooperates by revealing his or her plan. Allison did not disappoint, other than that she fell for a trick as old as the fruit salad in the Garden of Eden. She monologued like she was performing every tragedy Shakespeare ever wrote. She admitted she was going to kill the Champions and make it look like it was their fault then use the ensuing chaos to turn people against the super heroes. “The world is going to burn you all at the stake. The heroes are going to try to fight back and that ensuing ugliness is the end of the age of heroes.”

At which point, Captain Marvel and Jessica Jones revealed their plan, arrested Allison, and told her that she was going to a deep, dark prison cell where the S.H.I.E.L.D. Psych Squad would “pull all the other names and details of your burgeoning organization right out of your head … whether you like it or not.”

This story raised a few questions. I have a few answers. Let’s hope as many answers as there were questions.

Was faking Jessica Jones’s fall from grace so Allison Green would recruit her into her evil empire entrapment? No.

Entrapment happens when law enforcement officials originate a criminal design and implant the disposition to commit a crime into an innocent person’s head. If an undercover cop offers to sell someone drugs, that would be entrapment, as the government planted the idea of buying drugs into the innocent person’s head.

Allison Green was about as innocent as a newborn babe thirty-six years later; after he had become a paid assassin. She had already committed some crimes. She formed an organization to commit more crimes. Jessica did not implant the idea of committing crimes in Allison.

Did Allison’s monologued confession violate the Fifth Amendment guarantee against self-incrimination? No.

Captain Marvel and Jessica Jones tricked Allison into confessing, so there was state action. But the state action has to force the criminal to confess in order to violate the Fifth Amendment. Allison gave her confession like she was entering Dracula’s castle, freely and of her own will.

If the S.H.I.E.L.D. Psych Squad extracts information from Allison’s brain “whether she likes it or not,” would that information be suppressed under the Fifth Amendment? Hell yes!

In Schmerber v. California, the Supreme Court ruled the police could forcibly take a blood sample from a suspected drunk driver. But taking evidence using a bodily intrusion could only be done after the police obtained a search warrant. Schmerber allowed this because blood samples are not testimonial in nature. That meant only Fourth Amendment search and seizure law applied, not Fifth Amendment self-incrimination law.

Non-testimonial evidence is evidence which doesn’t require the suspect to reveal anything. As the Supreme Court noted in Curcio v. United States, the Fifth Amendment prohibits forcing someone to “disclose the contents of his own mind.” Ordering a defendant to produce blood samples, fingerprints, or the like does not require a defendant to “disclose the contents of his mind.”

Extracting thoughts from a criminal’s brain by telepathy “whether she likes it or not,” on the other hand, does force the defendant to “disclose the contents of [her] mind.” Literally.

So Captain Marvel, if you want to teep Allison’s house – well, her mental house, as it were – I have some advice; don’t. Any evidence telepathically extracted from Allison’s mind would be inadmissible because it would violate her Fifth Amendment rights. In addition, under the Fruit of the Poisonous Tree Doctrine, that evidence wouldn’t be admissible against any member of her “burgeoning organization” either. Apparently Civil War II didn’t teach Captain Marvel anything about the law, because her costume is still a fascist statement.

Last, and most important question, do I have any more columns about Civil Wars II on tap? You’ll be glad to know, the answer is no.

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 #368

DISMISSING A CASE WITH PREJUDICE IS INJUDICIOUS

First of all, when a lawyer gets a case dismissed with prejudice, that doesn’t mean it’s because the lawyer was the new, reconfigured Atticus Finch.

So what does “dismissed with prejudice” mean then? That’s the question I promised to answer last week, while discussing Daredevil v.4 #15.1, because a judge dismissed a criminal case against Matt Murdock’s client with prejudice. And here I am this week doing what I promised to do last week by answering the question.

Not all lawsuits end in a jury verdict. In fact, to tell the truth, most of them don’t. (Jeez, doing what I promised to do and telling the truth; that’s enough to get me kicked out of my lawyer in good standing status. If I were still a lawyer or ever had a good standing.) Most cases end long before a trial or a jury verdict. Many end with some sort of compromise deal being reached between the two parties. Either a settlement in a civil case or a plea bargain in a criminal case. Others end with one of the sides filing a motion to dismiss the case and the judge granting that motion. Still others end in other ways, but as we’re talking about motions to dismiss today, we won’t bother with those still other ways.

Either side can file a motion to dismiss, the plaintiffs or defendants in civil cases or the prosecutors or defendants in criminal cases. (Please note, in a lawsuit – both civil and criminal lawsuits – the party bringing the suit is the plaintiff. Plaintiffs in criminal cases are usually called prosecutors or the state, but they’re still the plaintiffs. For the sake of convenience, I’m going to use the term “plaintiff” to refer to both civil plaintiffs and prosecutors.) Usually one side files the motion to dismiss because there is a weakness in the plaintiff’s case. Plaintiffs, for example, might file a motion to buy some more time to develop their case. Defendants can file to dismiss, if they feel that the charging papers – either a civil complaint or a criminal indictment – fail to set forth an adequate case to present to a jury.

When a judge is presented with a motion to dismiss, the judge can either grant the motion or deny it. Most judges grant the motion to dismiss, if for no other reason than that it gets the case of the judge’s docket. Do judges like to get cases off their dockets? Does Sonny the Cuckoo Bird like Coco Puffs? If a judge grants the motion to dismiss, the judge can grant it in one of two ways. The judge can grant the motion with pride – judges do almost everything with pride – but either with or without prejudice.

Ah five paragraphs into the column and finally we’re reaching the Clara Peller part. You know, where the beef is.

If a judge grants a motion to dismiss without prejudice , that means that the plaintiff can file the case again in the future. If, however, the judge grants the motion to dismiss with prejudice, that means the plaintiff cannot file the case again. The plaintiff can appeal the judge’s dismissal with prejudice. But absent an appeals court overturning the dismissal with prejudice, the plaintiff is barred from ever filing that case in the future.

Common reasons for dismissing a case with prejudice include fraud on the part of the plaintiffs or the case being barred by the statute of limitations or the case being barred by res judicata because the plaintiffs brought the same matter to trial in an earlier case and lost. There are, of course more reasons. Lots more. (Seriously, you think there’s actually a legal principle that’s so simple it could be answered completely with only three examples? The law is large, it contains multitudes. And that’s just the tax code.)

In the Daredevil story, a murder charge against one Luiz Sifuentes was dismissed with prejudice, meaning the state of New York could not refile the same charges against Mr. Sifuentes in the future. Usually in criminal cases a case is dismissed with prejudice for one of a few reasons. If the defendant was already tried for the same charges and found not guilty, the defendant can’t be tried on those charges a second time because of the Double Jeopardy Clause of the Fifth Amendment. So if the state were to bring the same charges a second time and the trial court dismissed the case because of double jeopardy, that would be a dismissal with prejudice.

Another dismissal with prejudice would be if the state brought charges after the statute of limitations expired. In that case, the state would be barred from ever filing charges again, because of the statute of limitations.

Of if the defendant’s case were dismissed because the state didn’t bring the defendant to trial in compliance with the Speedy Trial clause of the Sixth Amendment that would also be a dismissal with prejudice, because the speedy trial violation would prevent the state from pursuing the charges in the future.

Those are some of the major reasons that a criminal case can be dismissed with prejudice. There are, naturally others. Multitudes, remember?

In the Sifuentes case, Sifuentes was charged with shooting a man to death in Central Park. Daredevil investigated the case and caught the two other people who were actually guilty of the crime. These two confessed to the murder after their fingerprints were found on the bullets in the cylinder of the murder weapon. They also admitted they didn’t know Luiz Sifuentes. So the judge dismissed the case against Sifuentes with prejudice, meaning that the state could never bring these charges against Mr. Sifuentes again.

That’s unlikely. The trial court wouldn’t want to do something which precluded the state from ever filing the charges again. What, for example, would happen if the other two defendants recanted their stories and said Sifuentes was also in on the murder? Or what if the state learned that the other two defendants were friends with Sifuentes and lied about not knowing him to get their friend out of trouble? In either scenario, the state would want to bring murder charges against Sifuentes again, but wouldn’t be able to do so, because the case had been dismissed with prejudice. So it’s not likely that the trial court would have granted Sifuentes’s motion to dismiss with prejudice, as it wouldn’t want to preclude the state from pursuing a case against Sifuentes, should new facts establishing Sifuentes’s actual guilt ever come to light.

What would probably have happened in the Sifuentes case is that the judge would have granted the motion to dismiss, based on the fact that Mr. Sifuentes appeared to be innocent of the charges. But it would have dismissed the case without prejudice. The state of New York would then have to decide whether it wanted to pursue a case against Sifuentes. If it believed that he was actually innocent of the crime, then it wouldn’t file the charges again and the matter would be over. But if, after further investigation, the State felt that Sifuentes was actually involved in the killing, it would file the charges against him a second time.

The trial court wouldn’t want to prejudge the state’s future ability to prosecute Mr. Sifuentes, so it wouldn’t grant a dismissal with prejudice. Oh and one more thing, don’t confuse prejudging with deciding which hybrid car to buy. Prius judging is entirely different.

The Law Is A Ass

BOB INGERSOLL: THE LAW IS A ASS #346 THE EMINENT MR. WAYNE LOSES HIS DOMAIN

arkham-manor-612x968-f3e97So in Batman Eternal #29

What? No I didn’t promise that I wouldn’t write about Batman Eternal this week, I promised I’d try. Also I’m not really writing about the year-long Batman story that is certainly living up to its name, so chillax. (Chillax. How is that even a word? Sounds like a murder weapon in Alaska.) This week I’m writing about what came after Batman Eternal #29. With a little of what came after Batman Eternal #34 thrown in. Which means what I’m writing about is Arkham Manor #1.

In Batman Eternal #29, Arkham Asylum – the hospital for the criminally insane located on the outskirts of Gotham City that houses Joker, Two-Face, Mister Zsasz, and most of the rest of Batman’s rogue gallery – blew up. Although how and why isn’t really important what the hell, I’ve got some time to kill. To put it succinctly, Deacon Blackfire, a magically delicious villain was using his magic in a fight with Jim Corrigan in the tunnels below Arkham Asylum. Blackfire was attempting to pull the Spectre, the ghostly spirit of God’s vengeance that lives inside of Corrigan’s body, out of Corrigan’s body. But Blackfire wasn’t adept enough for this kind of magic and in Batman Eternal # 29, his attempts resulted in …

SPOILER WARNING!

Usually, this is where I’d warn you I’m going to tell you how Batman Eternal #29 ended. This time I’m not. Arkham Manor #1 came out about a month before Batman Eternal # 29, even though it takes place after that story, and it gave away the ending to Batman Eternal #29. If DC didn’t mind spoiling its own story, why should I?

… an explosion. An explosion which caused Arkham Asylum to collapse in on itself in Batman Eternal #30.

Hundreds of people died when Arkham Asylum came tumbling down. But wouldn’t you know it, they were incidental deaths. Collateral damage, as it were. Somehow Joker, Two-Face, Mister Zsasz, and most of the rest of Batman’s rogue gallery survived.

Arkham Asylum’s destruction left Mayor Hady and Gotham City with a big question, where to put “the city’s most dangerous lunatics.” Any time someone suggested a possible new location for all those dangerous lunatics, the citizens of Gotham City basically responded, “Not in my backyard.” Even the ones who lived in brownstones and didn’t have back yards.

Fortunately for Mayor Hady and the city fathers, in Batman Eternal #34 the federal government seized control of Wayne Enterprises and all of its assets. I talked about the how and why of this three weeks ago, so you can go there to read about it, if you don’t already know. (BTW, I really recommend that you go to my old column to read about how and why the Feds took over Wayne Enterprises rather than reading Batman Eternal #34. Not because my new web-based home for the column needs the hits, I just think the experience will be more pleasant.)

Anyway, Bruce Wayne was left largely penniless. (Well, he does have this one giant penny sitting around doing nothing, but I’m not sure it’s negotiable.) Bruce had moved out of Wayne Manor and was living in an apartment in Gotham City. So Gotham City used eminent domain to take over Wayne Manor and make it Arkham Manor, the new home for Gotham’s criminally insane.

Eminent domain, the process by which the government may take private property for public use, is not a new concept. The concept dates back to biblical times, when King Ahab of Israel, offered to purchase the vineyards of one of his subjects, Naboth. Naboth declined Ahab’s offer, so Ahab’s wife, Jezebel, framed Naboth for blasphemy and had him stoned to death. After which Ahab got the vineyards. Since that time, they’ve refined the concept of eminent domain. It’s a little more fair and a little less killy. After the French Revolution, the French formally adopted the Declaration of the Rights of Man and of the Citizen in 1789. Among it’s provisions is the sentence, “Property being an inviolable and sacred right no one can be deprived of it, unless the public necessity plainly demands it, and upon condition of a just and previous indemnity.” The Founding Fathers drafted similar language in the Fifth Amendment of Constitution of the United States, “nor shall private property be taken for public use without just compensation.” Like I said, a little less killy. (Yes, there’s a bit of a history lesson here, but history is important. To paraphrase George Santayana; those who cannot learn from history are doomed to repeat it. Usually in summer school.)

So Gotham City decided to take Wayne Manor through eminent domain and convert it to Arkham Manor. In order to invoke eminent domain, the government must prove four elements” 1) there’s some private property, that 2) the government plans to take, for 3) a public use, after 4) making just compensation to the owner of the property.

Wayne Manor is clearly the private property of Bruce Wayne. Yes, even though the federal government seized Wayne Enterprises’s assets, Wayne Manor would probably still have been Bruce’s property. Remember, Wayne Enterprises was a corporation. The reason a business incorporates is to protect the property of the owners from lawsuits. After the corporation is created, it becomes a legal entity of it’s own and is solely responsible for its actions. If the corporation is sued, those harmed by the corporation can seize the corporate assets but not the assets of the corporation’s owners, that is to say the shareholders.

When the Wayne family established Wayne Enterprises, none of their lawyers would have allowed the Waynes to transfer ownership of Wayne Manor over to the corporation. Such an act would have completely negated the whole reason behind creating the corporation in the first place, limited liability. An attorney would have to be the Chief O’Hara of lawyers to let a client do something that stupid. So let’s assume, even after the Feds seized Wayne Enterprises, Bruce Wayne still owned Wayne Manor.

The government wanted to take Wayne Manor and convert it into a hospital to house the criminally insane, which would be a public use. The only question left would be the just compensation element.

Usually the just compensation happens this way. The government makes an offer which it considers to be fair market value for the property. Generally it’s a lowball offer, because we all know the government never overpays for anything. The property owner rejects the offer as too low and makes a counter offer of what the owner thinks is fair market value. Generally it’s high. The two parties negotiate over what is a fair market value for the property. If they reach an agreement, that amount is paid and the government takes over the property. If the two parties can’t reach an agreement, then they go to court and there’s a condemnation hearing during which the court will determine fair market value.

Sometimes the property owner doesn’t want to lose his property. So he might argue that the taking isn’t for public use. Again there’s a condemnation hearing, this time to determine whether the intended use is really a public use. If the judge rules it is a public use, the condemnation goes forward. I’ve never been able to figure out why these are called condemnation proceedings. No one is condemning the property, they’re just putting it to a new and different use.

None of those steps happened in the case of Wayne Manor. Why not? It wasn’t because the story got the law wrong. It was because Bruce Wayne knew he presently didn’t have the assets needed to maintain Wayne Manor or, in all probability, pay its property taxes. Bruce also believed his father, a doctor who advocated for better treatment of the mentally ill, would have given Wayne Manor to the city in the face of this emergency were he still alive. So Bruce voluntarily agreed to the condemnation proceedings and gave up Wayne Manor.

Bruce apparently believed in the old concept of noblesse oblige. And that makes him a better man than I am. Me, I would have held out for some money from Gotham City. Maybe I wouldn’t have soaked them, but if I just lost my personal fortune and was sitting on a house that was easily worth ten or twenty – and more probably thirty or forty – million dollars that the government wanted to buy, I would have wanted a little something something to get myself back on my financial feet.

But Bruce asked for nothing. He let his ancestral home go not for a pittance, not for a song but for nothing. Because he felt it was his duty. With a sense of noblesse oblige that strong, had Bruce lived back in the times of Caesar, he would have been the noblesse Roman of them all.

The Law Is A Ass

BOB INGERSOLL: THE LAW IS A ASS #343: COMMISSIONER GORDON CAN’T DO THE TIME, IF HE DIDN’T DO THE CRIME

500px-Batman_Eternal_Vol_1-13_Cover-1_TeaserIf you thought things looked bad in Batman Eternal before, well now they’re even worse. But enough about Batman Eternal, let’s look at where this year-long story has put our friend Commissioner James Gordon of the Gotham City Police Department. It’s not looking too good for him, either.

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.

Under the Fifth Amendment to the United States Constitution – an Amendment which applies both to the federal government and to the individual states by incorporation of the Due Process Clause of the Fourteenth Amendment– no government may deprive a person of liberty without due process of law. And even though some people who suffered through six seasons of Snooki and her drinking buddies might want to disavow New Jersey, it is part of the United States. That means the Fifth Amendment fully applied to Jim Gordon’s sentence.

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.

THE LAW IS A ASS #320: PETER’S GUNNING FOR THE FIFTH

PG60When I was younger, so much, much, much younger than today, there was a television show. Then, when I was a little older, they added a second channel and we got a second show. Eventually that led to four channels and lots more shows. One of those shows was Peter Gunn.

Peter Gunn was a private eye show that aired on NBC  then ABC from September 22, 1958 until September 18, 1961. It starred Craig Stevens as the eponymous P.I. and is probably best remembered for its jazz sound track and the theme song written by Henry Mancini. Even if you’ve never seen an episode of the show, I’ll bet you’ve heard the theme song.

I’ll also bet you don’t think I’m here to write about a TV theme song. There, you’d be correct. I’m here to write about the show. Specifically, Season 1, Episode 28, the April 6, 1959 episode, “Pay Now, Kill Later.”

The episode started with a SPOILER WARNING. Okay, it didn’t start with a spoiler warning. Like many episodes of Peter Gunn did, it started with a murder. It didn’t continue with a Spoiler Warning, either, but I have to. Because in order to discuss the legal ramifications of the episode, I have to give away details of the plot including its ending. So here goes.

John Abbot played a scientist who discovered a new miracle fabric in Manchester, England in 1945. But Abbot didn’t want to share the expected profits of this miracle fabric with his business partner played by Torin Thatcher. So Abbot hired a man who looked a little like him to be a caretaker of the textile mill he and Thatcher owned. Abbot tricked the man into wearing Abbot’s clothes then knocked him unconscious, left the man on the floor of the textile mill, and blew it up. All to frame Thatcher. Thatcher was convicted of insurance fraud for blowing up the mill and manslaughter in his partner’s “death.” (That’s what the show said, manslaughter. Personally, I don’t know why it wouldn’t have been felony murder or even premeditated murder, but I didn’t get a chance to ask the show, what with it being a TV show and rather nonresponsive and all.)

Fourteen years later, Thatcher was released from prison. He had always suspected that John Abbot wasn’t dead and had English detectives trace Abbot to America. Thatcher came to America and hired  Peter Gunn to track down Abbot. Abbot had changed his name and was now the successful head of his own textile firm, but Gunn tracked him down anyway.

When Gunn reported to Thatcher, Thatcher revealed his real purpose; he wanted to kill Abbot for ruining his life. He said he wasn’t worried because, he’d already been convicted of killing Abbot and under the Double Jeopardy Clause of the United States Constitution, he couldn’t be tried for the same crime – killing Abbot – a second time.

Gunn and his police liaison – back then all TV P.I.s had police liaisons just like all sit-com families had wacky next-door neighbors – Lt. Jacoby learned that Abbot was going to exhibit at a fabric show which was conveniently in the same unnamed river front city where Gunn operated. They went to the show to arrest Abbot for murdering the caretaker. But Thatcher also showed up with a gun so he kill could kill Abbot. Gunn and Jacoby tried to talk Thatcher out of this. While they did this, Abbot threw a bolt of cloth at them and bolted himself.

A gunfight ensued, as it did so often in Peter Gunn and virtually every other TV P.I show of the era. Abbot, who had his own gun, shot at Gunn and Jacoby. Jacoby and Gunn shot at Abbot. Then Abbot ran out of bullets and, rather than characteristically throwing his gun at Gunn, just tried to make a break for it. That’s when Thatcher shot and killed Abbot.  Thatcher surrendered to Jacoby and Gunn said, “It should make an interesting trial.”

Not really. It would have been a pretty straight forward trial. Thatcher killed Abbot in front of a respected P.I., a police lieutenant, and several other eyewitness; including the, in the 50s,  stereotypical screaming woman. And Thatcher had no defense.

He had no defense under Double Jeopardy Clause of the Fifth, because it didn’t apply to his case. As Gunn and Jacoby pointed out, the Double Jeopardy clause commands that a man cannot be tried for the same crime two times.  But Thatcher’s killing of Abbot wasn’t the same crime. After being framed, Thatcher had been convicted of killing Abbot in Manchester, England back in 1945. That wouldn’t apply to his actually killing Abbot in America in 1959. To quote the show’s accurate statement, “It’s a new and separate crime. Another time, another place.”

Nice to know that this low-budget half-hour TV show from 1959 managed to get the law correct, considering Double Jeopardy, the big budget 1999 movie starring Tommy Lee Jones and Ashley Judd, with basically the same premise got it all wrong. Repeatedly.

See Double Jeopardy doesn’t actually apply to the crime charged, that is what penal code violation was committed – in this case murder. Double Jeopardy applies to the criminal act that was committed. If you kill a man in 1945 that’s one criminal act. If you kill a man in1959, that’s a separate criminal act. You may get charged under the same statute, but you’ve committed two distinct and different criminal acts. You haven’t committed the same crime, you’ve violated the same statute two different times.

Even if the victim of both crimes happens to be the same man, because you didn’t really kill him the first time around, it doesn’t matter; it’s still two distinct acts and two distinct crimes for which you can be prosecuted two distinct times. Oh, you may be able to sue for wrongful imprisonment for the first murder prosecution, as you obviously didn’t commit that murder, what with the purported victim being alive and all. But you’d be enjoying your money in prison after being convicted of the second murder.

Suppose Baby Face Braunschweiger and the Light Fingered Five Minus Two rob the Frostbite Falls Bank in 1961, then are caught and convicted. Does that mean that, after they’re released, they get to rob the Frostbite Falls Bank any time they like with impunity, because they’ve already been convicted of that crime? No. They have been convicted of the crime once, but each time they rob the bank, they’re committing a new act. They may be breaking the same law, but they’re breaking it a second or third or fourth time. Even under Double Jeopardy, they can be prosecuted a second or third or fourth time. One prosecution for each new criminal act they commit.

And, in case you were wondering, because I said “Thatcher has no defense,” Thatcher can’t use self-defense in his trial, either. Yes, Abbot had been shooting at him and Gunn, and Jacoby. But there are two problems with him using self-defense. First, you can’t use self-defense if you are responsible for putting yourself in jeopardy in the first place. You can’t start a bar fight with someone then, when your opponent hits you back, get to claim self-defense when you hit him back for hitting you back. When Thatcher confronted Abbot with a gun and said he intended to kill Abbot, he initiated the confrontation. In this scenario, Abbot would be able to shoot at Thatcher in self-defense, but Thatcher wouldn’t be able to shoot back.

Second, when Thatcher shot Abbot, Abbot was out of bullets and running away. At that point, he no longer presented an immediate threat of bodily harm that necessitated any defense. So, again, self-defense wouldn’t apply.

I offer this week’s column as a public service. If you’re thinking of framing yourself for a murder that didn’t happen so that you can be convicted and go to prison, in the hopes that years later, you can then murder the still-living victim for real and not be prosecuted because of Double Jeopardy; don’t. That defense won’t work.

Insanity, on the other hand…