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The Law Is A Ass #459: THE SHOW WASN’T ACCURATE “FOR LIFE” OR MONEY

Nicholas Pinnock on "For Life" -  ABC7 Chicago

Five minutes. Couldn’t ABC’s big new legal drama For Life go just five lousy minutes without a major legal mistake? Is that too much to ask?

Yes

, ah say yes, it is.

Sorry about the bad Foghorn Leghorn impersonation. I had to do a bad Foghorn Leghorn impersonation, because I can’t do a good Foghorn Leghorn impersonation. And, I had to say, “Yes,” twice, as there were two major legal mistakes in those first five minutes.

In those first five minutes, a flashback introduced us to Aaron Wallace, a black nightclub owner in New York City who was framed for drug possession. He was convicted of a crime that neither he nor a one-armed man committed and sentenced to prison.

The show then jumped nine years to the present. Aaron was now an attorney arguing a motion for a new trial in his first case. And arguing it against Assistant District Attorney Dez O’Reilly, the same ADA who prosecuted Aaron and who didn’t know his opposing counsel was Aaron Wallace until he saw Aaron in the courtroom.

Then the show quantum leaped back into another flashback that revealed Aaron hasn’t been released from prison. He is appearing as a lawyer even though he’s still serving a life sentence.

Then the show, which was jumping around more than a five-year-old in a bouncy castle, came back to the present for a conversation between O’Reilly and his boss District Attorney Glen Maskins to explain how Aaron became a licensed attorney.

Aaron worked for the prison’s paralegal association helping other inmates with their internal prison legal matters. This got him unlimited access to the prison law library and computers, which he used to attend then graduate from first an online college and then an online law school. Aaron took the Vermont bar, because it was the only state that allowed someone with a degree from an unaccredited law school to take it’s bar. Then Aaron successfully applied to have his Vermont law license accepted reciprocally in New York.

Which brings us up to the five minute and two seconds mark of the show. Okay, I lied, it was five minutes and two seconds. So sue me, maybe you can get Aaron to take the case.

What’s wrong with that picture? Let’s start with ADA O’Reilly having no idea who his opposing counsel was until he saw Aaron in the courtroom.

Legal pleadings have a service clause, a paragraph in which the attorney who filed the pleading swears a copy of the pleading was served upon opposing counsel. It also includes the attorney’s address so opposing counsel can serve their responsive pleading. Aaron’s name and address, Bellmore prison, was clearly on display for O’Reilly to see. Unless O’Reilly didn’t read the motion before appearing in court to argue it, he should have seen Aaron’s name and address.

The show tried to explain why he didn’t see Aaron’s name. The ADA originally assigned to the new trial motion hearing went to the hospital when his wife had gone into labor

, so the motion was only given to O’Reilly thirty minutes earlier. But that excuse, like a napkin in a deli, won’t cut the mustard.

If Dez O’Reilly was going to go argue against a motion he only received thirty minutes earlier, the first thing he’d do is read the motion. After all, he would need to see what arguments the motion made so he’d know what counter arguments to make. And when he read the motion, he would have seen Aaron’s name and address. Reading the motion is the first thing I would have done. But what do I know? I was merely a practicing attorney for 28 years, I didn’t play one on TV.

But that mistake, like a side of tots, is small potatoes. We’ve got bigger spuds to fry: The fact that Aaron is a licensed attorney in New York.

Ex-cons can become licensed attorneys and practice law. Isaac Wright, Jr., the real-life person whose story inspired For Life, did. While he was serving his sentence, Mr. Wright, with the help of a licensed attorney, got all the charges against him dismissed for prosecutorial misconduct. After he was released, Wright graduated college, then law school, and became an attorney. It took him more than a decade, but he did it.

Aaron took a shortcut. He managed to become a licensed attorney without first getting the charges against him dismissed. And while he was still in prison.

Which makes it unlikely that he would been admitted to the Vermont bar. Like all state bars, Vermont’s bar requires an applicant meet its character and fitness requirements. I’m sure those requirements would put a big old biggest frowny emoji on an application from a convicted drug offender who was serving a life sentence in another state and denied it. Most states don’t want people becoming criminals until after they’ve been admitted to the bar and have learned how to cover their tracks. It’s much less embarrassing that way.

The show told us a former state senator in New York vouched for Aaron to get him past the character and fitness requirements in New York. Maybe that former senator did grease the wheels in New York. But how much pull would he have had with the Vermont bar? About as much as a teddy bear in a taffy factory.

And what about travel expenses? Vermont would have had to pay to transport Aaron from a prison in New York to some Vermont courtroom every time he had a case to argue. That also should have caused Vermont to deny the application, as the other way would be to practicality and fiscal responsibility what balsa wood is to fighter jets.

But even if Aaron was admitted to the Vermont bar

, he still wouldn’t have been able to get New York to grant him reciprocal admittance its bar. When states have a reciprocity agreement, members in good standing of the bar in one state can be admitted to the bar of another state without having to take the new state’s bar exam. New York and Vermont do have a reciprocity agreement, so Aaron could have had New York accept his Vermont license reciprocally. Provided he met the requirements of Rule 520.10 of New York’s rules for admission to the bar.

By now you should know me well enough that I shouldn’t have to spell out those requirements for you to know Aaron didn’t meet them. But like a jock strap that’s on backward, I’ll be anal retentive and tell you. Under Rule 520.10 New York will grant reciprocity to an applicant who has been practicing law in a reciprocating state, “for five of the preceding seven years.”

There is simply no way that Aaron could have been practicing law in Vermont for five years. He’d only been in prison for nine years, and, considering he was a full-time prisoner taking on-line courses in his spare time, it probably took him most of those nine years to complete his studies. Even if he was able to take a heavy caseload to accelerate his studies, he probably needed three years to complete the four-year college program then another two years to finish the three-year law curriculum. That’s five years. If he was working at optimum speed. Which means he could only have been practicing in Vermont for four years, not enough years for him to qualify for reciprocity in New York. So, no, Aaron probably wasn’t an attorney in Vermont and definitely wasn’t one in New York.

That’s what was wrong with For Life in just the first five minutes. Did the show get better from there? Well, I can honestly tell you that there were no more legal problems with the episode that I can write about.

In this column.

Next column… Well next column, I hope I can at least get us past the first commercial break.

The Law Is A Ass #455: In An “Almost Family” Way

Okay, here’s the part of our entertainment that no one wants to see; Bob Ingersoll dances.

We’re not talking Bob does a Viennese waltz or trips a light Japanese Chakkirako. I’m not performing any other shaking and shimmying the sight of which would make you want to Polka sharp stick into your eyes. No, I’m dancing my way around certain indelicacies.

Our topic, you see, is the Fox Network TV series Almost Family.

You say you’ve never heard of Almost Family? Wouldn’t surprise me. The show debuted in October of 2019 and performed so poorly that after the original thirteen episodes Fox ordered ran, Fox didn’t want to pick up the back nine. Kind of like how I feel halfway through a round of golf. Almost Family disappeared forever in February of 2020, which proves that something good did happen in 2020.

It was the story of the Bechley family. Dr. Leon Bechley, the patriarch of the family, was a fertility doctor with a clinic in Manhattan. Julia Bechley, Leon’s daughter, was the communications director of the clinic. Edie Palmer and Roxy Doyle were some of Leon’s other children and some of Julia’s half-siblings; family no one knew about, because, in a plot inspired by the real-life case of Dr. Cecil Jacobson, Dr. Bechley used his own sperm to impregnate several of his female patients.

I don’t know why Dr. Bechley used his own sperm, especially without his patients’ knowledge or consent, but I have a suspicion. From comments Dr. Bechley made, I suspect he wanted a son and, after not having one through his marriage, decided to try for a son by, uhh, playing fast and loose with his personal juice. (Like I said, I’m dancing here!)

I don’t know if my suspicion is correct. I watched one episode of Almost Family and dumped it even faster than Fox. I didn’t see if the show offered an explanation for Leon’s pecker-dillos.

I can tell you this, the pilot episode ended with Dr. Bechley being arrested while the assistant district attorney in charge of the case said her office determined that his acts constituted sexual assault. So Dr. Bechley would be charged and tried accordingly.

Except he wouldn’t. There is no such crime as “sexual assault” in New York. There are many sexually oriented offenses in New York all of which would constitute sexual assaults, but none of them are actually called “Sexual Assault”.

Dr. Bechley could be charged with a felony sex offense. Which one requires examination of the elements of New York’s sex offenses.

He couldn’t be charged with rape. Rape offenses in New York require the defendant to have sexual intercourse with the victim. NY Penal Law § 130.00, the law that defines some of the terms used in setting out New York’s sexual offenses, did not define sexual intercourse, per se. All it said was that sexual intercourse, “has its ordinary meaning.” Now conversation is an ordinary meaning of intercourse, but you can’t get charged with rape for talking dirty. Rather it’s what happens when… Well, when, “a mommy and a daddy love each other very much.” As Dr. Bechley didn’t have sexual intercourse with any of his patients in it’s “usual meaning,” he didn’t commit rape.

New York has a series of crimes called Criminal Sexual Act offenses. They require that the defendant have had “oral sexual conduct” or “anal sexual conduct” with the victim. NY Penal Law § 130.00 did establish what specific acts would constitute either type of “sexual conduct.” Rather than to quote them in graphic detail here, let me just say they also have their “ordinary meaning.”

New York also has crimes called Sexual Abuse. They require that the defendant have “sexual contact” with the victim. The statute defines sexual contact as, “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party.”

When he artificially inseminated his patients, Dr. Bechley probably used one of the two most-commonly used methods, intracervical insemination or intrauterine insemination. Intracervical insemination involves introducing semen into the vagina using a needleless syringe. Intrauterine insemination involves introducing semen into the uterus with a catheter.

If Dr. Bechley used either technique, he would definitely have touched the sexual or intimate parts of his patients. So could he could be charged with one of New York’s Sexual Abuse crimes because he had “sexual contact” with the victim? Possibly, but proving him guilty would be tricky.

Remember, the prosecution would not only have to prove sexual contact but also that said contact was done to provide sexual gratification to Dr. Bechley or his patients. Dr. Bechley artificially inseminated his patients to make them pregnant. I doubt his patients got any sexual gratification out of it. Dr. Bechley might have gotten gratification out of it, but could the prosecution establish that he acted for that reason instead of to make his patients pregnant? As I said, a Sexual Abuse prosecution would be very hard to prove beyond a reasonable doubt.

Where New York probably could prosecute Dr. Bechley is under one of the Aggravated Sexual Abuse crimes

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, specifically Aggravated Sexual Abuse in the Fourth Degree. According to the pertinent parts of NY Penal L § 130.65-A, that crime happens when a defendant “inserts a foreign object in the vagina… of another person and the other person is incapable of consent by some reason other than being less than seventeen years old.”

There can be little doubt that artificially inseminating someone would consist of inserting a foreign object into a vagina. But didn’t Dr. Bechley inseminate with the patient’s consent?

No.

Remember, the patients didn’t know Dr. Bechley was going to use his own semen. It is doubtful the patients would have consented to the artificial insemination, if they had known this. So, while the patients did consent to the procedure, that consent was obtained by fraud. The patients were, therefore, incapable of giving a proper and meaningful consent, because of the fraud perpetrated in obtaining that consent.

The statute does state that “Conduct performed for a valid medical purpose does not violate the provisions of this section.” If, for example, a doctor had to perform an act which would violate the statute as part of an emergency procedure on an unconscious patient, the doctor would not be guilty of the crime. That defense does not apply to Dr. Bechley.

When Dr. Bechley inseminated the women using his own semen without their permission, he violated medical norms and practices; not to mention his patients. His acts would not be considered a valid medical purpose.

By the way, it was not my intention to make light of a serious subject. As I said, I was trying to dance around some of the more explicit aspects of this column and fell back on my old standby of humor. It’s a psychological defense mechanism, like projection. Call it a deflect in my personality.

The Law Is A Ass #450: One Can Only Marvel At All The Ms. Takes

The Law Is A Ass #450: One Can Only Marvel At All The Ms. Takes

Ms. Marvel Vol 4 #20

I don’t care what you say, 2020 could have been worse. Want proof? Marvel’s Civil War II didn’t come out in 2020, now did it?

Ah, Civil War II, the gift that kept on giving, even after we had taken it to the return window. It continued to haunt us in Ms. Marvel Vol 4 #20, after we thought we had put it out of our misery. Bear with me, to explain how, requires more back story than the Illustrated Man’s dorsal region.

Kamala Khan wasn’t always Ms. Marvel. Her latent Inhuman gene activated after she was exposed to the Terrigen Mist during Terrigenesis. That’s when she got powers and became protector of Jersey City. I realize that if you’re not up on Marvel continuity, the preceding sentences make no sense. I am up on Marvel continuity, after a fashion, and they don’t make complete sense to me. But explaining it further would make this column longer than Stephen King’s The Stand; abridged and unabridged versions. Combined. So, like a Lee fake fingernail, we press on.

Some months later, Kamala’s brother, Aamir Khan, was exposed to something. It wasn’t Terrigen, but it still gave Aamir powers. How it gave Aamir powers isn’t important, not unless we want to add Stephen King’s Under the Dome to this column’s word count. What is important is that Aamir got his powers when he was an adult.

During the events of Civil War II, Aamir openly displayed his super powers. Then, after Charles Worthy, a front man for Hydra, became Mayor of Jersey City, he started a policy of taking the city back from the “activist super heroes” who have disrupted Jersey City. To accomplish this, Worthy issued an executive order requiring all super heroes in Jersey City to register.

Aamir didn’t register. He was arrested pursuant to the executive order and held in a detention center, where a police officer reminded Aamir that he was an emigree who became a naturalized citizen when he was eight. The officer advised Aamir that “Under the new law, failing to disclose super-powers could potentially count as immigration fraud. If you obtained your citizenship under false pretenses, this could be grounds for revocation.” Meaning, Jersey City would revoke Aamir’s citizenship and deport him.

Jersey City may believe it’s like some little train engine going up a big hill, but it isn’t. Not only do I not think it can do this; I know it can’t.

Let’s deal with the ridiculous assumption, that if Aamir didn’t disclose powers he didn’t have at the time he became a naturalized citizen, he obtained his citizenship under false pretenses. Aamir didn’t have his powers when he was naturalized, he got them years later. To say he concealed something he didn’t have is like saying I – all 5 feet 7 inches of me – concealed my two-handed, behind-the-back slam dunk. Go ahead, try to conceal something you don’t have. That’s a trick that would fool Penn & Teller.

Aamir obtained nothing under false pretenses. The only false thing in the story is Mayor Worthy’s knowledge of the law. Especially if Worthy thought he could unconstitutionally apply an executive order which he issued after Aamir was naturalized to revoke Aamir’s citizenship. Don’t believe me? Look up the Ex Post Facto clause. Tell you what, I’ll save you a little research. You’ll find it in Article I §§ 9 and 10 of the United States Constitution. Next I’ll save you some time and tell you ex post facto is not a discontinued breakfast cereal but Latin for after the fact.

The Ex Post Facto clause says that neither the federal government (§ 9) nor a state (§ 10) can pass a law that punishes behavior that occurred before the law was passed. So Jersey City can’t revoke someone’s citizenship for not following an executive order that didn’t exist at the time that person became a citizen.

I know the Constitution doesn’t mention executive orders in the Ex Post Facto clause. But in ex post facto analysis there’s no real difference between an executive order and a law, so I don’t think that even the strictest textualist would deny relief on that pretext.

But let’s say that Jersey City could get past the arguments that Mayor Worthy’s executive order violated the Ex Post Facto clause– it can’t, but I have a few more words to go before I hit my word count quota, so I’ll use them up with another hypothetical – it still couldn’t use the executive order to argue that Aamir obtained his citizenship through fraud.

Remember how we proved Aamir didn’t conceal his super powers when he became a citizen, because he didn’t have any super powers when he became a citizen? (Yes, you do. Time may seem to pass more slowly during a pandemic lock down, but five paragraphs wasn’t that long ago.) That argument also negatives Jersey City’s fraud claim.

Fraud requires a specific intent to deceive to gain a benefit. That’s the culpable mental state of the crime. When Aamir was naturalized, he lacked an intent to deceive by concealing his super powers, because he lacked super powers.

Finally, does Mayor Worthy think he’s going to be able to use that fraud argument to expatriate Aamir and then deport him? If so, he’s dumber than a bag of door knobs. And not the good kind, we’re talking the kind that come out in your hand so you can’t open the door.

I refer you back to the Constitution. Specifically Article 1

, § 8, clause 4 which gives the United States Congress the power to establish the rules of naturalization. Congress. You know, five hundred thirty-five men and women in Washington D.C. Not one mayor in central New Jersey. Give the mayor of Jersey City immigration authority? Hell, Congress wouldn’t even do that for Snooki.

So what does this mean? It means Jersey City wronged Mr. Khan bigly. We’re talking serious constitutional violations here, not Aamir inconvenience.