Tagged: Sixth Amendment

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #369


Because it had three stories in it, that’s why.

Yes, we’re playing Jeopardy. That’s the answer. And the correct question is, why did you write three columns about Daredevil v4 #15.1?

The third story in this extra-long volume with the screwy numbering – “Chasing the Devil” – featured a familiar scene. No, not the balcony scene from Romeo and Juliet– please tell me that scene is familiar to you and I didn’t need to go with the food fight from Animal House. Rather this is the familiar scene that ends the standard super hero-super villain fight scene.

In this version of the scene, Daredevil was fighting Diablo, the centuries-old master of alchemy who first appeared in Fantastic Four #30 and who, despite the fact that he is centuries-old and a master of alchemy, is a surprisingly second-rate super villain. Let’s face it, he appeared in the third story in this particular comic, a story that was only eight pages long. Considering that some of the story was set-up and some of it denouement, the actual number of pages devoted to the fight was three and one-half. So, no, we’re not talking an A-lister here. B-lister, anyone? C-lister? Let’s just say, Diablo would be suffering delusions of grandeur if he auditioned for Dancing With the Stars.

So after their mercifully brief fight, Daredevil tied Diablo up and left him hanging for the cops to find and arrest. The cops did find Diablo, did arrest him and, I assume, Diablo was prosecuted for his misdeeds. I can only assume, because we didn’t see the aftermath. Apparently, the story didn’t want to spend any more time with the loser villain, either.

However, assuming Diablo was prosecuted for his crimes, the fact that he was prosecuted should be ringing more bells than Quasimodo in the Westminster Concert Bell Choir. Because we have talked about this before. Masked super heroes catching criminals, leaving them for the cops to find, then walking – or swinging – away before the police have a chance to question them or get their statements. I’ve noted that without that an actual conversation with the super hero involved, the police wouldn’t have enough probable cause to arrest the bad guy in question, because they didn’t see the baddie committing any crime and the person who did was nowhere to be found.

And even if the police did arrest the bad guy, taking him to trial would be trickier than a Penn & Teller special. Under the Sixth Amendment’s Right of Confrontation, the defendant has the right to cross-examine the state’s witnesses. But the defendant wouldn’t be able to cross-examine a masked witness, because the defendant wouldn’t know who that witness was, so wouldn’t be able to question the witness about possible biases.

Masked super heroes wouldn’t be allowed to testify in court without revealing their secret identities, which they wouldn’t want to do. (If they wanted to reveal their secret identities, they wouldn’t wear masks. I mean, what’s the mask for other than keeping a secret identity secret? A bad case of hat hair?) So if the masked heroes don’t reveal their secret identities and aren’t allowed to testify, there would be no evidence against the bad guy and said bad guy would be found not guilty.

That’s the way it would usually go, in one of the average super hero scenarios. That’s not, however, the way it would have gone in Daredevil v4 #15.1. Because this story was smarter than the average super hero scenario.

It didn’t have Daredevil chance upon the super villain doing his super villainy by happenstance. No, it had Daredevil overhear a police radio broadcast that “a major drug deal involving ‘Diablo’ and a number of known offenders is under way at the Syracuse Salt Mines.” (Hey, I know there are operating salt mines underneath Cleveland, Ohio. Are there actually salt mines under New York City, too? Not a big deal, I just wondered.)

The police already knew that Diablo was around and dealing drugs. The police didn’t need Daredevil for the information about Diablo’s diabolic doings, they already had it. The story didn’t say how the police knew. Could have been an eyewitness account from another witness. Could have been a undercover narcotics officer report. Could have been a tip from the Morton Salt Girl. How they got the information doesn’t matter. What’s important is, they had it.

And because the police had the information, that means someone other than Daredevil – the someone who told the police about the drug deal in the salt mines in the first place – could have testified at Diablo’s trial and supplied the jury with the information it needed to convict Diablo.

Of course, considering Esteban Corazón de Ablo goes by the nom de guerre of Diablo, maybe not even that information was necessary. Get people on the jury people who know that Diablo means devil and it might be a short trial.

(“Ladies and Gentlemen of the jury, the defendant in this case goes by the name Diablo.”


But even if the jury was conscientious and required more information than the defendant’s chosen nickname, whoever supplied the information to the police should have been enough information for a conviction. The police wouldn’t need Daredevil on the witness stand.

Tony Isabella https://en.wikipedia.org/wiki/Tony_Isabella once told me that whenever possible he’d have his super hero-super villain fights take place in highly public places before lots and lots of witnesses. That way there would be plenty of people around who could testify against the super villain, even if the super hero couldn’t. A wise practice. Prosecutors have enough trials and tribulations without extra trialing tribulations.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #368


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 #335: THE TEEN TITANS FLUNK CIVICS

teen-titans-2-415x280-6425837Once upon a time, there was a very bad man who got caught committing armed robbery. Caught red handed. But the very bad man was never brought to trial. Never convicted. Never even arrested. In fact, the bad man got away scott-free.

And no one lived happily ever after.

Except for the very bad man.

I wish this were only a fairy tale. It isn’t. (Isn’t, that is, if we pretend the adventures of the Teen Titans are real and not, in themselves, fairy tales. But if you grant me that little wish, then this story, unlike those stories where wishes are actually granted, isn’t a fairy tale.)

It was all there in cyan, magenta, yellow, black, and white  in Teen Titans v 5, # 3Beast Boy and Bunker were walking around New York’s Battery Park (which is a park in lower Manhattan and not the answer to that age-old question, where do you park your batteries). They were minding their own business when the very bad man pointed a gun at them, and demanded they empty their pockets.

As I doubt this was the preamble to a street magic act and the very bad man wasn’t about to produce a piece of paper inside a sealed envelope on which he had previously written the exact contents of Beast Boy’s and Bunker’s pockets, I must assume the very bad man was about to commit armed robbery. That’s what made him a very bad man.

Neither Beast Boy nor Bunker were inclined to give the very bad man the contents of their pockets, especially as they were both in costume so didn’t have any pockets. So instead, Bunker formed a massive psionic brick fist and punched the very bad man somewhere into the next panel. Bunker then said, in a rather self-congratulatory tone, “Far as I see it, I was doing my civic duty!” Bunker called the police on the cell phone he got from somewhere, but not his pockets as he didn’t have any, and told them, “A man tried to mug us in Battery Park. Oh no, he’s caught. No he won’t be going anywhere.” Then Beast Boy and Bunker calmly walked away from the scene of the crime, leaving the battered very bad man lying on the ground behind them, while Bunker said, with no small amount of pride, “See? One less criminal loose in New York. Already the streets feel safer!”

Bunker may have thought he was doing his civic duty, but his civic duty apparently included flunking middle-school Civics class. Let us, then, examine Bunker doing his civic duty from the perspective of a middle school civics class. Who can tell me what Bunker and Beast Boy did wrong?

Anybody? Anybody? Bueller?

That’s right, Beast Boy and Bunker walked away from the scene of the crime before the police arrived. When the police got there, they found the very bad man lying battered on the ground and no one else around to give them a statement. At which point, the police helped the very bad man to his feet, asked him whether he was all right, inquired whether he wanted to press assault charges against whoever hit him, and then let the very bad man go on his merry way.

The police don’t know who called them to report the mugging. They didn’t know who to seek out for a statement about the incident. They didn’t know who the victim of the alleged mugging was. They didn’t have anyone to call as a witness in the very bad man’s trial.

Without any witnesses to call and testify about what happened, the police and the prosecution had no evidence to prove that the very bad man tried to rob anyone. Without any evidence, the police and prosecution couldn’t possibly get a conviction. There wouldn’t have been any point in bringing the very bad man to trial. In fact, without anyone around to give a statement, the police didn’t even have anyone to press charges, so they couldn’t even arrest the very bad man.

And, no, the police couldn’t testify that they received a phone call reporting a mugging and found the very bad man at the site of the reported mugging with a gun lying next to him. Not without violating the Sixth Amendment, they couldn’t have.

The Sixth Amendment guarantees all defendants in criminal trials the right to confront the witnesses against them. That means they get to cross-examine the people who accused them of whatever it was they were accused of doing. In the case of our very bad man, it would mean he would get to cross-examine the people who accused him of mugging them.

If the police tried to testify about the anonymous phone call that reported a mugging, the defense attorney, even a bad defense attorney – you know, the kind who airs low-budget commercials with doggerel rhyming slogan in between late-night infomercials – would know to object to the testimony as hearsay. The police would be testifying about someone who wasn’t in court and told them that the very bad man tried to mug them in order to prove the very bad man did, indeed, try to mug someone. That’s the very definition of hearsay, an out of court statement made by someone other than the witness in order to prove the truth of the matter asserted in the statement.

At least, that’s what I said the definition of hearsay was three columns ago, and I don’t think it’s changed in the past three weeks. Let me check…

Nope, it hasn’t. So the police wouldn’t be able to testify about the anonymous phone call and there would still be no evidence to prove the very bad man guilty of anything.

Tony Isabella once told me he always had his obligatory fight scenes take place in front of lots of people other than the masked super heroes for just this reason. So there would be lots of witnesses who could testify as to what the very bad men in his stories did and the very bad men would go to trial and would be convicted.

So, once upon a time, there was a very bad man who committed armed robberies only against people who flunked middle school civics. The very bad man enjoyed a long and prosperous career. And he lived happily ever after.

The end.