Tagged: Matt Murdock

The Law Is A Ass #444: So, Is Daredevil Appealing?

The Law Is A Ass #444: So, Is Daredevil Appealing?

The Lord giveth and the Lord taketh away. Sometimes. And sometimes it’s a bunch of old people in robes.

Matt Murdock won a big victory in the New York Supreme Court. He convinced the judge presiding over the trial of Simon Slugansky to allow Daredevil to testify while still masked and without revealing his secret identity. He won a second big victory in the Appellate Division of the Supreme Court, when it upheld Slugansky’s conviction. Then he lost it all when the Court of Appeals, the highest court in New York, reversed Slugansky’s conviction 4-3. We didn’t see the actual ruling in the story, but I’ll assume it ruled masked super-heroes could not testify without revealing their masked identities.

Now you may be wondering how could that happen? No, not how could Matt have lost in the Court of Appeals. I spent the last two columns telling you why Matt should never have won in the Supreme Court, let alone prevailing in a court of appeals. You’re wondering how the Court of Appeals could be the highest court in New York and the Supreme Court could be the lowest.

The answer is simple. That’s how New York chose to name its courts. The Supreme Court is the trial court in the superior courts, the Appellate Division is the first level of appellate court, and the Court of Appeals is the highest court.

Yes, I know it goes against common sense. After all, according to Dictionary.com supreme means “highest in rank or authority.” That would mean that the supreme court should be the highest court. And for most of us the Supreme court is the highest court in our states or, in the case of the federal Supreme Court, the highest court in the land. Just as God, the supreme being, should be the highest personage in the heavens.

Except those of us who are married know that God isn’t the highest. That would be Mrs. God. So, if the supreme being isn’t the highest being, maybe a supreme court doesn’t have to be the highest court. New York took advantage of that little loophole and decided to give its appellate courts skewed appellations.

Is this the end of Matt’s plan to allow masked super heroes to testify while masked? If I were to tell you that Daredevil vol 5 #24 was only the fourth part of the “Supreme” storyline and that a five-part story would fill out a nice trade paperback collection much better than a four-part story would, would that answer your question?

Of course it’s not the end.

Matt decided to appeal the Court of Appeals opinion to the United States Supreme Court by filing a petition for a writ of certiorari. A writ of Certs and Dory? What’s that?

A petition for a writ of certiorari is a legal pleading filed with the United States Supreme Court which asks the court grant certiorari over the case so it can accept jurisdiction and rule on its merits. It’s how most case are appealed to the US Supreme Court.

There was just one little hitch in Matt’s plan; his boss. Manhattan District Attorney Ben Hochberg had all the backbone of cream of mushroom soup without the mushrooms and was reluctant to appeal.

According to Hochberg, the case was a, “spectacle” that would “reflect[] on [his] office. If Matt were to lose in the Supreme Court, “you’ll look like a maniac, tilting at windmills. It’ll end your career.”

Losing a high-profile case in the Supreme Court would end your career? That must have been news to Henry Wade, the district attorney for Dallas, Texas. He lost the high-profile case of Roe v. Wade in the Supreme Court in 1973 and continued to serve as Dallas DA until 1987.

Ben, old boy, lots of people lose in the Supreme Court. Statistically speaking about fifty percent of all litigants lost in the Supreme Court. And it didn’t end their careers. In fact, arguing a case in the Supreme Court – win or lose – is considered a rarefied honor in the legal profession; one which usually opens more doors than it closes. So stop acting like Zachary Smith’s even more-cowardly brother and let Matt do his frikkin’ job already.

To his credit, Ben did let Matt appeal. Reluctantly, and with some crippling restrictions. “I won’t stop you – it’s still your case – but you’re on your own. D.A. resources and personnel are off-limits.” Which, of course, they can’t be.

Ben was wrong when he said it’s Matt’s case. It isn’t. It’s Ben’s case. Matt isn’t a party to the case. The parties are Simon Slugansky as defendant and the state of New York as the Plaintiff. As New York isn’t an actual person, it can’t actually appear in court. Yes, most courtroom doors are double wide, but you still can’t get an entire state through them.

New York has legal representatives who appear in its stead. In criminal cases, said legal representatives are the districts attorneys. As the District Attorney for Manhattan, Ben Hochberg’s the legal stand-in for New York in the case. It’s his name which appears on all the pleadings. Matt can sign the pleadings and argue the case, but only as the duly authorized representative of District Attorney Ben Hochberg.

So Ben literally can’t forbid Matt from using the office resources. Yes, he can say Matt can’t use the officer personnel to help him, can’t use the office computers, can’t use the office Lexis or Westlaw accounts to research the case, can’t even use the office staplers to hold the briefs together better than Ben’s reasoning holds together. But at the end of the day, or the beginning of the day or the middle of the day, or whatever part of the day Matt finishes up his writ and is getting ready to send it off to the Supreme Court; Ben can’t deny Matt all of the resources of the office of the District Attorney for Manhattan. When it comes time to sign the writ, Matt still has to sign it as a representative of Ben Hochberg.

Win or lose, Ben, your name still has to be on that writ somewhere. So, Ben, don’t you think in the long run it would be better for your name and your office to give Matt all the resources he needs to win the case considering your name and your office will be part of the case no matter what you do.

The issue ends with Matt Murdoch persuading his former law partner, Foggy Nelson, to help him prepare the writ, but without any mention of whether they actually get the case before the Supreme Court. What do you think, will they get there?

Before you answer, remember this: earlier I said this was only part four of the “Supreme” storyline and that trade paperbacks work much better with five- or six-part stories. That means it’s very likely that Daredevil vol 5. #26 will be “Supreme” part five, and if Matt and Foggy don’t get their case in front of the Supreme Court, what are they going to fill the issue with? The Three Stooges’ “Disorder in the Court?”

The Law Is A Ass #421: Daredevil Ends The Art Show, Mural Less

The Law Is A Ass #421: Daredevil Ends The Art Show, Mural Less

Well, since they’re going to make it easy for me…

In Daredevil vol 5 # 11, there was a new villain in town, Muse, a deranged artist who painted a mural on a wall. Given that we’re talking about a comic book, I think you can Banksy on the fact that there’s more to this villain than meets the eye. Not just Daredevil’s eye, which is blind after all, but even more than meets the eye of an eagle with 20/10 vision. See, it’s not that Muse was using other people’s walls for his paintings; that would only make him guilty of vandalism. Muse was also using other people’s blood.

Yes, while some artists paint in oils and others in watercolors, Muse used the blood of his victims. I think for Muse, his medium is the message.

Muse painted a mural on the wall of a warehouse owned by one Freddy Durnin using the blood of over one hundred and twelve different missing persons. Freddy wanted to display the painting to the public for ten dollars a head. Did the public want to see this corpuscular – or should I say corpse-puscular – work of art? I think the idea grue on them, because there was already a line that went “around the block.”

Personally, I’m not too sanguinary about Freddy’s chances. DNA tests established that one of the victims whose blood was used in the painting was the niece of Andrea Pearson, Speaker of the New York City City Council. And Ms. Pearson did not want the painting displayed to the public.

Now, given that there was the blood of over one hundred victims in the painting, I’m not sure how any DNA sample wouldn’t have been so hopelessly contaminated that it would have been impossible to positively identify any one victim’s DNA. But I’ll give the story that one. After all, this is the Marvel Comics Universe. Reed Richards probably killed an hour one afternoon when the Internet was down by developing a highly efficient method of separating cross-contaminated DNA samples that’s used by whatever DNAgency operates in the MCU.

Anyway, back to Councilwoman Pearson. When Freddy rebuffed her, she went to the District Attorney’s office to get him to shut the display down. And DA Hochberg turned the matter over to assistant DA Matt Murdock. Hochberg was mad at Matt, who had been shirking his duties as an assistant DA. Seems Matt was out protecting the streets of Hell’s Kitchen as Daredevil when he should have been attending to his ADA duties. So Hochberg dropped the case, and a sarcasm bomb in Matt’s lap, “You are supposed to be one of best attorneys of your generation, Matt. Please… do us both a favor. Prove it.”

Wow, some punishment. Hochberg punishes Matt by giving him a job that was so easy even a first year law student intern assigned to filing duties because the alphabet was at the upper end of his competence could accomplish in half an hour? Yes, punish the guy by giving him punishment that basically amounts to a paid afternoon off, that’ll show him.

Seriously, while I was writing these words, I came up with three arguments Matt could use to shut down Freddy’s nightmare. And I wasn’t even giving any thought to the problem.

  1. Have the police say they’ve only finished their initial investigation and that the warehouse is still an active crime scene that has to be kept free of outside contamination. So no visitors allowed.
  2. Have it declared a public nuisance. After all, that blood will attract flies and rats and other vermin to the area.
  3. And, hey, human blood is biological material. Some of that blood may have AIDS or hepatitis or some other infectious disease. That means the mural is a health hazard which is too dangerous to be open to the public. Even more so when you consider that this is blood from one hundred twelve people in the Marvel Universe. So one of them probably had radioactive spider venom or cosmic Gamma rays or Terragin mists or just plain, old New York City water coursing through their blood. That makes it even more of a biohazard.

Once Matt had a theory or five he would petition the court for either a preliminary injunction, an ex parte proceeding in which the person or persons who wanted to enjoin – or prevent – an action from happening appear before a judge without the other party to the case also appearing. To get a preliminary injunction, Matt would have to convince the court both that allowing the act he wanted to enjoin – here Freddy operating his art gallery – to occur would cause some sort of damage and that Matt’s argument would more than likely prevail when the case came to an actual trial. If the judge agreed, the judge would grant the preliminary injunction, temporarily blocking Freddy from running his gallery and setting the case for a immediate hearing in which both sides could argue their cases.

And seeing as how several pages after Hochberg palmed this problem off on Matt, the police presented Freddy with a preliminary injunction, that must have been exactly what Matt did. See, I told you they made it easy for me. Matt did everything right, so all I had to do was explain what he did and why it worked without the extra step I usually have to include of explaining what Matt should have done but didn’t do and why he should have done it.

Still all I said was that Matt made it easy for me, I didn’t say he made it painless. There was that extra scene when Matt complained to Foggy about his possible moral conflict. The DA’s office is supposed to promote justice, not shut down some guy’s business “because it gets on City Hall’s nerves.” Matt, baby, don’t invite problems. You weren’t shutting a business down because it got on Andrea’s nerves, you were shutting it down because it presented a legitimate health hazard. That’s a good thing and what you’re supposed to do as a DA. Don’t go worrying about problems that don’t exist yet.

If Hochberg tells you do to something at a later date which you think is wrong, then you can have your moral crisis. Don’t worry about it now, before he’s asked you to do that thing, whatever it is, worry about it later when he actually asks you to do it.

And considering how loose your legal ethics have been the past few years, I’m not so sure you’ll worry about it all that much later, either.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #413


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

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

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

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

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

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

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

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

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

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

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

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

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

Bob Ingersoll: Daredevil, Punisher and Where To Get A Fair Trial


The Law Is A Ass #395

daredevil_punisher_seventh_circle_infinite_comic_vol_1_1There’s an old joke I’m not going to repeat. It’s long; not very good; and, worst of all for a joke, not particularly funny. I bring it up because it’s punchline, “You can’t get there from here,” has a great bearing on the comic we’ll be discussing today.

What comic? My pun-ishing headline indicates, it’s a comic featuring Daredevil, Matt Murdock, and a change of venue in a trial. And that means it’s Daredevil/Punisher: Seventh Circle.

We learned in the first issue of this mini-series that there’s this gangster named Sergey Antonov, see, and he’s a bad man, see. How bad? Well, he didn’t shoot a man in Reno just to watch him die, but he poisoned a rival gang’s boss’s Christmas turkey just to get him out of the way. Unfortunately, the rival boss’s whole family was eating that turkey. Four generations – most of them innocents – died because of Antonov’s actions. That’s how bad.

Well, Antonov has been captured and is going to stand trial for his crimes. However, because “too many people hate [him]” in New York City, the District Attorney’s office feared it couldn’t get an impartial jury in New York City. So Assistant District Attorney Matt Murdock, moved for a change of venue. To Texas.

Which leads us to several points of discussion. First: what’s venue? To answer that I have to take us back to the time when we weren’t the United States but thirteen colonies under the British Empire. (Okay, I don’t have to, but I’m going to. How else can I show off all this historical knowledge I picked up in law school?) Back then, King George III had people who committed crimes in the colonies transported back to England for trial. The colonies didn’t like this. They even included it as one of their grievances with the Crown in the Declaration of Independence.

In order to prevent that from happening in the United States of America, the Founding Fathers put a clause in Article III of the United States Constitution requiring all criminal trials must be held within the state in which the crime was committed. But the Founding Fathers didn’t stop there. They also included a Vicinage Clause in the Sixth Amendment’s trial by jury provision dictating that the jury be composed of people who live within the state and district where the crime occurred. That district where the trial can be held, that’s the venue.

Killing four generations of one family with a Swift Botulismball Turkey would be a felony. Actually, it would be a lot of felonies; four generations worth of felonies. Felonies are tried in county courts in most states – Louisiana and Alaska have parishes and boroughs instead of counties – so for a felony trial in New York, the proper venue would be the county where the crime occurred. As Matt Murdock, who works for the District Attorney in Manhattan, is prosecuting the case, we’ll assume Antonov’s crimes occurred in the county that contains Manhattan; New York County.

Matt successfully moved to change the venue of Antonov’s upcoming trial, bringing up our second point of discussion: what’s a change of venue? Pretty much exactly what it sounds like. Sometimes a case is so highly publicized that it’s difficult to find people who haven’t heard about the case or formed an opinion about it before the trial started and the proper venue can’t assemble an unbiased jury. When that happens, the defense may seek a change of venue, so that the case can be tried in a different venue; one where the jury hasn’t heard about the case and isn’t biased.

In most states only the defendant can move for a change of venue. It is, after all, the defendant’s constitutional right to have the case tried in the venue where the crime occurred. And usually only the defendant may waive that right and seek to have the trial in a different venue. But NY Criminal Procedure Law § 231.20 specifically says that either the defendant or “the people,” i.e. the DA’s office, may move for a change of venue. So, having Matt Murdock ask for the change of venue wasn’t incorrect.

Having Matt Murdock request a change of venue to Texas, on the other hand…

And, yes, that is our third point of discussion.

Remember what I said earlier about Article III, dictating that a trial must be held within the state wherein the crime occurred. That means the only state that has jurisdiction to try a criminal case is the state where the crime occurred. Texas would have no subject matter jurisdiction over a crime committed in New York and a DA’s office could not ask that a New York criminal trial be transferred to Texas. The Constitution would permit changing the venue to some other county in New York. It would not permit changing the venue to some other state, like Texas.

There’s also no reason to move the trial to Texas. I’m a reasonably educated and well-read person but I’m up in Cleveland and I really couldn’t tell you much about the criminal goings on down in Cincinnati; except for this one noted case of vandalism involving a radio station and Thanksgiving turkeys. I don’t care how infamous Antonov’s crimes were in Manhattan, I can’t believe knowledge of his crimes was so wide-spread or pervasive that you couldn’t find twelve jurors in, say, Chautauqua County New York who hadn’t heard about or formed an opinion about the case.

For the record, I choose Chautauqua County because – check a map  – it’s about as far away from Manhattan geographically as you can get and still be in New York state, not because I think it’s provincial. I doubt they’re all that familiar with Manhattan’s crimes in, say, Jamestown or Celoron. Besides they’ve been a little preoccupied there with that “Scary Lucy” statue.

So why did the judge grant Matt’s unconstitutional request to move Antonov’s trail to Texas? I have no idea. We didn’t see the change of venue hearing or meet the judge, so I have no way of knowing why the judge did what the judge did. There could be a few reasons. Hell, considering Matt’s history of unethical behavior, we can’t even eliminate bribery.

Why did Matt Murdock choose the unconstitutional venue of Texas instead of the constitutional venue of Chautauqua County? That’s another story.

Literally. We found out why Matt chose Texas in Daredevil/Punisher: Seventh Circle # 4. And that’s another story. (Okay, it’s a later chapter in the same story but for the purposes of the joke that’s as good as another story.) And because it’s another story, it will also be another column.

Or, in the immortal tradition of comic books everywhere, to be law-tinued.

Martha Thomases’ School Daze


The week after Labor Day is the traditional beginning of the school year. Yes, #NotAllSchools, but enough.

When I was in elementary school, the first day was a big deal. My mom and I had spent a lot of time over the summer selecting my new clothes, usually an activity that included lots of arguments. (I hated wearing uniforms at boarding school, but it did reduce the fighting at home.) On that first day I wanted to show off my favorite selections, so I usually spent all of my class time sweating through my lovely winter jumper with coordinating turtleneck sweater.

Naturally, I wondered how superheroes would fare. I don’t mean those lucky enough to have classes that catered to their specific mutations or skills, but regular school, with tiny milk cartons in the cafeteria and bullies at recess.

I remember Superboy and Supergirl stories from my youth where they would be stuck in class while their super-hearing picked up some disaster that needed their attention. They had robots available for such occasions, although I do not remember any stories in which those robots had to take tests or get punched in the face. Today, we can read about Moon Girl and her issues with being smarter than her classmates (as well as trying to keep a dinosaur secret). Her powers are the least of her problems.

As usual, I wonder about superheroes with more esoteric powers. Mind-readers like Saturn Girl could cheat on tests simply by barging into the thoughts of the teacher. She could also get completely icked-out simply by walking past the boys locker room… but that also happens to girls who aren’t telepathic.

Matt Murdock could avoid bullies by sensing when they were planning to punch him out. He could probably also tell when the lunch lady lost a hair (or worse) in his food. Matter-Eater Lad could avoid cafeteria problems altogether. He’d have no reason to fear  mystery meat when the tray would be a satisfying substitute lunch.

Truly, there are few situations in which it is not amusing to imagine Matter-Eater Lad.

Individual problems and opportunities for individual students might present story opportunities, but the conditions of our schools, physically and structurally, are the real outrage. Public schools are constantly forced to do more with less. No matter how much money any particular municipality might budget towards them, an insufficient percentage trickles down to individual teachers in individual classrooms.

Even worse, there is increasing pressure on students to pass specific kinds of tests that purport to measure their learning but are more likely to measure their ability to take tests. Some groups want to eliminate arts education to focus on science, math and technology, as if math and science don’t benefit from people with artistic imaginations.

Children, even those without super-powers, are each unique. I know there are those who don’t like it when someone points out that everyone is special, but they are wrong. I learn at a different pace and in a different way than you do. Schools should take this into account. No, we shouldn’t lower standards and pass kids from one grade to the next purely for social reasons. Diplomas should indicate a level of accomplishment, and we should have a nondiscriminatory way to measure this… although I don’t know what this would be.

I was always good at taking standardized tests, usually placing in the 99th percentile. This helped my parents with their bragging rights but did nothing to indicate that, for example, I was terrible at memorizing, especially foreign language vocabulary words. If there had been a way to catch that earlier, I might be able to spend more time in Paris.

My point (and I do have one) is that schools don’t have to be places of boredom and terror. We could treat our kids with more love and respect, appreciating their differences in a way that celebrates their victories and nurtures them when they fail.

I thought of this while listening to Dean Haspiel give the keynote address at the Harvey Awards last weekend. Dean talked about the challenges of being a freelance artist in a culture that values neither art nor freelancers. After a lifetime in New York working with colleagues in a studio in a building with loads of other artists, Dean admitted that he is considering leaving.

New York City drew me here because it was a place where one could meet artists and writers and rock stars and poets and radical activists. It was a great place to raise my kid, who went to public school with kids who spoke Spanish, Russian, Chinese and lots of other languages at home, and who might live in shelters or brownstones, projects or penthouses.

That doesn’t happen anymore.

Those of us who value each other’s special abilities should consider finding a town in decline and moving in en masse. We could work together to provide the services we want, and we could live close enough to each other so we could ease the trauma of moving. We could volunteer at libraries and schools and summer camps so all the kids who feel like mutants would know we think that’s a good thing.

And we could install air-conditioning in the schools so that, if I show up on the first day, I can wear my best new outfit.

The Law Is A Ass


She-Hulk_Vol_3_9_TextlessI guess it’s just an occupational hazard with the lawyering game; assuming your clients are lying to you. Lord knows, I was guilty of it enough times. Of course, it’s easy to do that, when your initial conversations go something like this.

“I didn’t burgle that house, Mr. Ingersoll.”

“The police found your fingerprints in the house.”

“The police planted my fingerprints there.”

“The police found you in the house.”

“The police planted me there.”

Okay, that was a slight exaggeration. My clients don’t actually know the difference between burgle and rob. But you get the idea.

So, as I said, it’s an occupational hazard. And it affects all of us. Even Jennifer (She-Hulk) Walters. Even when her client is Captain America.

So, if you guessed today’s column is about Part 3 of “The Good Old Days,” from She-Hulk v.3 #10, you’re right. Now as this was part three of a three-part story, let’s get you up to speed.

In 1940, Harold Fogler left his home in Brooklyn and went out to Los Angeles http://www.discoverlosangeles.com to make his mark. He failed like a wino with bad bourbon. Largely because he hooked up with some “bad people,” who were planning to cause a riot on the Los Angeles docks. Harold’s younger brother, Sam, and a pre-Captain America Steve Rogers came out to LA looking for Harold. They found him. But the bad people found them.

The bad people ordered Harold to shoot Sam and Steve. Harold refused. Then Steve started telling the bad people how weak and cowardly they were. According to Harold, the leader of the bad people told Steve if he didn’t shut up, he’d kill Sam. Steve didn’t shut up. The leader killed Sam.

Seventy-four years later, Harold Fogler related this story for the first time while on his death bed. Then Harold’s heirs sued Captain America claiming that Cap wrongfully caused the death of their uncle Sam when he didn’t stop talking. Jennifer Walters represented Cap and Matt (Daredevil) Murdock represented the Foglers.

Matt introduced Harold’s deathbed statement as his main evidence. He also called Cap to the stand. Cap admitted that everything Harold said was true. And with that the plaintiffs rested their case. (And promptly lost, by the way, because the plaintiffs never introduced any evidence covering what damages Sam’s death caused his great-grandnewphews, so the jury couldn’t award them any money. But that’s another matter.)

Jennifer cross-examined Cap who told the jury his side of the story. It was basically the same as Harold’s side but it added two important things that Harold left out. First, the “bad people” were Nazi saboteurs and American fifth columnists working with the Nazis. Second, the leader didn’t threaten to kill Sam. He said, “Stop talking or someone will die.” Steve didn’t stop talking and the leader told Steve, “I should kill you.” But he didn’t want to kill Steve. He regarded Steve as weak and wanted Steve to marry and have kids so as to infect his country with his weakling genes. So the leader killed the “strong one,” Sam.

And there’s the difference: in Cap’s account, the leader didn’t threaten to kill Sam, he threatened to kill someone. Steve thought the leader was going to kill him, so didn’t know his talking would cause Sam’s death. That being the case, Steve didn’t act negligently in continuing to talk, so didn’t wrongfully cause Sam’s death.

The case became what, I used to call a swearing match when I was lawyering. No, I don’t mean the witnesses got on the stand and started cussing; although that happened often enough. No, it means one side’s witnesses testify and swear the events happened one way. The other side’s witnesses testify and swear they happened another way. Then it was up to the jury to decide which side’s swearing it believes.

She-Hulk was worried about the case. Steve couldn’t verify his version with any records because the matter had been classified. I think She-Hulk was over-thinking the case and worrying for nothing. Personally, I think it could have been the shortest closing argument in history. “Hey, jury, you have two versions of the story. One from a fifth columnist Nazi saboteur and terrorist, the other from Captain America. Who are you going to believe?” But She-Hulk worried. Probably because, lawyers believe their clients are lying, and she feared the jury would too.

Cap had anticipated She-Hulk’s doubts. But he needed She-Hulk to believe in his veracity, so that she could convince the jury of his veracity. So he had She-Hulk’s investigator, Hellcat, break into a government facility and steal the classified documents. He gave them to She-Hulk to prove he was telling the truth. But he told She-Hulk she couldn’t use the documents in trial.

Let me get this straight. Cap had no problem with Hellcat breaking into a government facility and stealing classified documents, but had qualms about introducing them in court? Hey, Cap, I have a suggestion for you. Should this happen again, call your contacts at S.H.I.E.L.D. or the White House and have them declassify the documents. They were seventy-four years old, for crying out loud, and had only been classified because back in the 40s, the government didn’t want the American people to know that “Nazis were working on U.S. soil.” Seventy-four years later, the government wouldn’t even care about this secret anymore. They would have declassified the documents for you in a second. Then you could have used them at the trial.

Anyway, armed with her new-found confidence in Cap’s veracity, She-Hulk gave an impassioned and convincing – because she was convinced herself – closing argument. She said exactly what I said in my version of the closing argument. Only longer. And the result was …

Actually, I don’t know the outcome of the case. Right as the forewoman of the jury was saying “We find the defendant…” the story cut to a new scene. I can’t tell you whether the jury found the defendant guilty or not guilty. Which is good. That way I don’t have to issue a spoiler warning.

So, I can’t tell you what the jury decided. I can, however, tell you this; despite what the forewoman started to say, the jury didn’t find the defendant either guilty or not guilty. This was a civil trial, remember. Juries don’t find defendants guilty or not guilty in civil cases. They either find for the plaintiff or find the defendant. But guilt doesn’t enter into their deliberations.

One little follow up and for this I do have to issue a


Cap deduced that someone was behind this plot against him. Someone who wanted to discredit Cap and tarnish his reputation. Someone who convinced Harold to come forward after all this time, then convinced Harold’s heirs to sue Captain America, and leaked other evidence in the case. That someone was Dr. Faustus. So Cap, She-Hulk, and Daredevil fought their way past Dr. Faustus’s guards and into Dr. Faustus’s hideout, where Cap punched out Faustus cold.

Which created a whole new problem for She-Hulk. Cause when Dr. Faustus sues Cap for assault and She-Hulk represents him, if Cap denies his involvement, she won’t just assume he’s lying, she’ll know.

The Law Is A Ass


SheHulkIt was like one of those puzzle pictures we used to read in Highlights Magazine in the dentist’s office waiting room. The “What’s wrong with this picture?” one. But with one major difference. In this case, the picture is She-Hulk v 3 # 8, and the answer to what’s wrong with it is, not much of anything. Still, I want to show I can waste as much of our time writing about how a comic book story got the law right as I can writing about how it got the law wrong. So here goes.

She-Hulk v 3 # 8 started in a Los Angeles hospital where a dying nonagenarian made a death bed confession regarding “something terrible he needed to get off his chest.” No, not his “I heart Snooki” tattoo. Unfortunately, the story immediately cut to three weeks later, so we don’t know to what the dying man confessed.

After said three weeks transition, Steve Rogers, the once and future Captain America – Seriously, does anyone really think Falcon will still be Captain America when the third Cap movie comes out in two years? – visited the law office of Jennifer (She-Hulk) Walters. Cap told Jennifer why he came, but not us readers. Again with the keeping secrets from the readers? All we know is that Cap’s being sued in Los Angeles Superior Court for wrongful death, because of something that happened in Los Angeles in 1940. The rest will be parceled out slowly over the course of this multi-part storyline. It’s enough to make you wish that Lost never got on the air.

Jennifer suggested filing a motion to dismiss the suit on the grounds that Cap died a few years ago and a person can’t be sued post-mortem. Cap nixed the idea. He didn’t want to win the case on a technicality. Which is just as well, as Cap didn’t really die. He had been shot with a gun that caused him to phase in and out of time and space and everyone thought he was dead; but he wasn’t. Filing a motion to dismiss that argued Cap had died when he hadn’t would have been a fraud on the court. Matt Murdock may play so fast and loose with legal ethics that he’d argue a motion based on a fact he knew wasn’t true; I’m not so sure about Jen.

Jen also considered the statute of limitations. Both state and federal jurisdictions have statutes which command that causes of action must begin within a certain number of years after the event which caused the cause of action. If the lawsuit isn’t filed within the statutory limit, it is procedurally barred. Hence the name statute of limitations.

Statutes of limitations exist to protect defendants from the possibility that the evidence necessary to defend themselves has been lost, destroyed, or forgotten in the intervening years. In California, the statute of limitations for wrongful death is set forth in California Code of Civil Procedure § 331.5 and it’s two years. Which means the time to file the wrongful death suit against Cap expired in 1942.

But the suit against Cap asked for equitable tolling of the statute, because the family didn’t learn it even had a wrongful death action until that deathbed confession three weeks earlier. Judges can grant a motion to toll the running of the statute of limitations, if the plaintiffs did not know about the claim until after the statute of limitations had expired. Some judges won’t, because they see it as a way of getting a case off their docket. But they can. Some judges do, because they see it as fair and equitable. But they don’t have to. The judge in our case probably doesn’t even have to worry about it.

Remember Cap already said he didn’t want to win on a technicality. He wanted to try the case and win it on its merits, so that his name would not tarnished in any way. A statute of limitations dismissal would be the type of technicality that Cap would veto.

And Jen would have to accede to Cap’s wishes on this, even though it might not be in his best interests. If a client wants his or her case handled in a certain way, the lawyer representing the client must accede to the client’s wishes, as long as the client’s wishes aren’t illegal or unethical. If a client wanted to put on perjured testimony, a lawyer wouldn’t have to do that; in fact, couldn’t do that. It’s illegal and unethical. But there’s nothing illegal or unethical – merely unwise – about not wanting to file a motion to dismiss and a lawyer couldn’t file one against the client’s wishes.

Someone asked me how Cap can be sued in Los Angeles when he’s a citizen of New York City. That’s easy. Whatever happened in Los Angeles back in 1940, Cap was there when it happened. That gave California and her courts personal jurisdiction over Cap for the case. If you visit L.A. and cause a traffic accident, the other people in the accident can sue you in L.A. That’s where the accident happened and where you were, when you caused it.

The next thing that happened was that Jen had to get some California lawyer to sponsor her appearance in a California court pro hac vice. This is a procedure by which a lawyer who is not licensed to practice in a state gets permission to be admitted to that state’s bar just for the one case; pro hac vice being a Latin term meaning “for this occasion.” It’s done by having a lawyer who is licensed in the state file a pro hac vice motion on behalf of the out-of-state lawyer.

But why, you may wonder, did Jen have to proceed pro hac vice? After all, waaay back in The Savage She-Hulk# 1, Jen lived, and practiced law, in Los Angeles. She was already a member of the California bar. Emphasis on the “was.”

California, like Ohio, has a registration requirement. In order to continue practicing law in California, every three years a lawyer must take enough California continuing legal education classes to meet California’s CLE requirements. Oh, and pay an annual registration fee. Several years ago Jen moved to New York and started practicing there. In addition, for some period of time, Jen was disbarred and worked as a bounty hunter. Although Jen got her license back, between years of practicing in New York and months of being a disbarred bounty hunter, Jen let her California license become inactive.

Yes, she could get her California license reinstated, but only after taking enough CLE classes to satisfy California and paying her registration fee – don’t forget her registration fee, money-strapped California won’t. But that takes time.

The wrongful death suit against Cap was filed no more than three weeks ago and probably later. Jen agreed to represent Cap some about days before it was set to go to trial. Jen didn’t have time to get her California law license reinstated. Hence the pro hac vice request.

Jen called Matt Murdock – who had just resumed practicing law in California after he was disbarred in New York, himself – to help her file a pro hac vice motion. He turned her down. So Jen ended up using Matt Rocks, one of former X-Factor leader Jamie Madrox’s duplicates who had become a successful entertainment lawyer in L.A.

For two days, Jen prepared herself for the trial, until she was confident that she’d be ready for anything the opposing side could throw at her. Which led to the big surprise ending. And to this


As in, I’m about to give away the surprise ending of the story and you have been warned not to proceed if you don’t want to know it.

When Jen entered the courtroom, she discovered that opposing counsel was Matt Murdock.

Although, come to think of it, that wasn’t really all that much of a spoiler. If you didn’t see this ending coming the second Matt Murdock turned Jennifer down, you weren’t paying attention when you took Twist Endings 101.

The surprise ending did puzzle me, tough. Why didn’t Matt simply tell Jen he couldn’t help her file a pro hac vice because he was opposing counsel? There is absolutely no reason for him to have kept this information secret other than to be a dick. Still, considering some of the crap Matt has pulled in the past few years, being a dick may have been reason enough for him.

On the other hand, Jen should have known Matt was opposing counsel, anyway. As the attorney of record, Matt would have signed the official court filings in the case; the complaint, motions, requests for discovery, or what have you. Even if some other lawyer prepared the case, filed the complaint and all the other motions, and Matt only just took over the case; Matt would have filed a notice of appearance in the case to alert the court that he was now the attorney of record. Jen should have seen that notice while preparing for the case and known about Matt. If she didn’t, she should really withdraw from the trial, because she’s a poor excuse for a lawyer.

Now I said the story got the law right. Actually, it mostly got the law right. But the story would have us believe a seventy-four-year old wrongful death suit was going to trial only three weeks after the plaintiffs first learned their cause of action existed. I’m sorry, but no.

Neither Jen – three days – nor Matt – three weeks – would have had sufficient time to prepare their cases; what with all that pretrial discovery and deposing witnesses and endless motion practice. Both sides should have moved for a continuance to give themselves adequate time to prepare for a trial that is so important. Even squeaky-clean Cap could have no complaints to Jen’s moving for a continuance so she could have more than three days to prepare for a trial. Winning a trial because your lawyer is prepared is not winning on a technicality. And going to trial with a lawyer that hasn’t had time to prepare is more suicidal then playing Russian Roulette with a fully-loaded revolver.

Also, three weeks? I admit, I’ve never practiced law in California, so I can’t tell you how quickly civil cases move forward out there. But three weeks?

I can tell you that in Cleveland it takes several months – usually several years – for a civil case to come to trial. And Los Angeles County is 7.67 times more populated than the county where Cleveland sits, so probably has lots more civil cases clogging up its dockets. Those cases would be ahead of Jen’s trial and would have been tried first. There is no way a complicated wrongful death suit would ever come to trial in only three weeks.

Trust me, the constitutional right to a speedy trial only applies to criminal trials, not civil trials. Civil trials are about as speedy as Congress moving on immigration reform.

Well, what do you know? This is the longest column I’ve written for ComicMix. Turns out I was wrong before. Seems I can waste even more of our time writing about how a comic book story got the law right than I can writing about how it got the law wrong.

The Law Is A Ass #325: Did Daredevil Have To Be Disbarred?

lawass-300x150Well, the story didn’t get the law wrong. But I’m not sure it got the law right, either.

The story in question is Daredevil v.3 # 36. The law in question is… Well, that would be telling. Which is exactly what I’ll be doing for the next thousand words or so, telling you about that law.

Daredevil v. 3 # 36 was the culmination of a multi-part story. Multi-part story short: Robert Oglivy has been framed for murder. Robert’s father wanted Matt Murdock, who is secretly Daredevil, to represent his son. Matt was reluctant, because Ogilvy was the head of the latest iteration the Sons of the Serpent – a racist hate group which secretly controlled the New York City justice system. Ogilvy blackmailed Matt by threatening to out Matt as Daredevil, unless Matt agreed to help Robert.

In order to take away Ogilvy’s leverage, Matt…